IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

EQUAL EMPLOYMENT : NO. 2:05CV03389-GP 

OPPORTUNITY COMMISSION, : (CONSOLIDATED) 

et al., : 

 : 

 Plaintiffs : THE HON. THOMAS M. GOLDEN 

 vs. : 

 : 

CONECTIV, et al., : 

 : 

 Defendants : 

DEFENDANT IRONWORKERS LOCAL 36 MOTION FOR SUMMARY 

JUDGMENT PURSUANT TO F.R.C.P. 56

 AND NOW, comes the Defendant, Ironworkers Local Union No. 36, by and 

through its attorneys, Quintes D. Taglioli, Esquire, of MARKOWITZ & RICHMAN, and 

hereby files this Motion for Summary Judgment pursuant to F.R.C.P. 56 and in support 

thereof respectfully represents: 

 1. On July 1, 2005, the Plaintiff, James Slater (Plaintiff/Slater) filed a 

Complaint against the Defendant, International Association of Bridge, Structural, and 

Ornamental Ironworkers, AFL-CIO, Local Union #36 (Union), and two other 

Defendants, Conectiv and Steel Suppliers, Inc. 

 2. In his Complaint, the Plaintiff alleged, inter alia, that while the Plaintiff 

was working for Steel Suppliers at a construction site in Bethlehem, Pennsylvania 

controlled by Conectiv, the Plaintiff was subject to racial discrimination. The Plaintiff 

further alleged that during his employment he was a member of the Union. 

 3. As to the Union, Plaintiff alleges that as a consequence of actions which 

occurred while he was employed by Steel Suppliers at the Conectiv site, and because of 

its operation of the hiring hall and referral system, the Union discriminated against him 

Case 2:05-cv-03389-TMG Document 90 Filed 11/09/06 Page 1 of 64
because of his race in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 

2000(e) et seq., (Count II of the Comp.). 

 4. Plaintiff also alleged that as a consequence of an oral contract of 

employment the Plaintiff entered into with the Union, the Union violated the Civil Rights 

Act of 1866, as amended, 42 U.S.C. § 1981 (Count IV of the Comp.). 

 5. Plaintiff also alleged that as a result of the actions identified in the 

Complaint which supported those statutory violations, the Union committed the tort of 

intentional infliction of emotional distress (Count VI of the Comp.). 

 6. On the same date, the Equal Employment Opportunity Commission 

(EEOC) filed a Complaint against Conectiv, Steel Suppliers, AC Dellovade Inc., Matrix 

Services Industrial Contractors d/b/a Bogan Inc./Hake Group. In its Complaint, the 

EEOC alleged that those Defendants violated § 703(a)(1) of Title VII by subjecting 

certain individuals, including the Plaintiff, to a racially hostile work environment. The 

hostile work environment included racial graffiti on portable toilet walls, racially 

offensive comments, a hangman’s noose, and other racially derogatory remarks on the 

job site. (EEOC Compl., ¶11.) Individually named as affected employees in the EEOC 

Complaints were Keith Riddick (Riddick), James Slater (Slater), Roy Grimes (Grimes), 

and Jeffrey Campbell (Campbell). The EEOC did not name the Union as a Defendant. 

 7. The other individually named Plaintiffs in the EEOC Complaint, like 

Slater, filed civil actions against Conectiv and their respective employers. Further, in the 

case of Plaintiff Riddick, Riddick not only named Conectiv and his employer but also his 

Union, International Brotherhood of Electrical Workers Local 375. 

 8. All Defendants filed timely answers denying liability for any actions 

alleged in the Complaint. 

Case 2:05-cv-03389-TMG Document 90 Filed 11/09/06 Page 2 of 64
 9. On October 12, 2005, Judge Gene E.K. Pratter consolidated the EEOC 

action with the individual actions for purposes of discovery and pretrial disposition. 

 10. Discovery has been completed and there are no genuine issues of material 

fact. 

 11. Those counts of the Complaint wherein the Plaintiff alleges liability on 

behalf of the Local 36 should be dismissed as a matter of law, as the Union has not 

violated Title VII, § 1981, or committed the tort of intentional infliction of emotional 

distress for the reasons cited in the accompanying Brief. 

 WHEREFORE, the Defendant, Ironworkers Local 36, prays that this Motion for 

Summary Judgment be granted, and this Honorable Court dismiss the Plaintiffs’ 

Complaint as to Local 36, enter judgment in favor of Local 36 against the Plaintiff, with 

costs against the Plaintiff. 

 Respectfully submitted, 

 MARKOWITZ & RICHMAN

Date: 11/9/06 By:/S/ QUINTES D. TAGLIOLI, ESQ.

 QUINTES D. TAGLIOLI, ESQUIRE 

 I.D. # 30158 

 512 Hamilton Street, Suite 200 

 Allentown, PA 18101-1505 

 (610) 820-9531 

Case 2:05-cv-03389-TMG Document 90 Filed 11/09/06 Page 3 of 64
IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

EQUAL EMPLOYMENT : NO. 2:05CV03389-GP 

OPPORTUNITY COMMISSION, : (CONSOLIDATED) 

et al., : 

 : 

 Plaintiff : HONORABLE THOMAS M. GOLDEN 

 vs. : 

 : CIVIL ACTION 

CONECTIV, et al., : 

 : 

 Defendant : 

DEFENDANT IRONWORKERS LOCAL 36’S BRIEF IN SUPPORT OF ITS 

MOTION FOR SUMMARY JUDGMENT

 

I. INTRODUCTION

 On July 1, 2005, Plaintiff James Slater (Plaintiff/Slater) filed a Complaint 

against Defendant Conectiv, Defendant Steel Suppliers, Inc., and Defendant Ironworkers 

Local No. 36 (Union/Local 36). In his Complaint, Plaintiff alleged that he became a 

member of the Union in 1999 as an apprentice. (Plaintiff’s Comp., ¶10.) In or around 

June 2002, he commenced employment for Steel Suppliers at the Conectiv site in 

Bethlehem, Pennsylvania. (Plaintiff’s Comp., ¶3.) He alleged for the period from 

August 2002 until March 2003 he was subject to racial harassment in the nature of racial 

graffiti on bathroom walls, racial jokes, and derogatory racial statements. (Plaintiff’s 

Comp., ¶¶14-41.) Slater therefore claimed Local 36 violated Title VII, 42 U.S.C. 

§2000(e) as did the other two Defendants by separate counts. Slater also alleged Local 

36 discriminated on the basis of race in the operation of its hiring hall/referral system in 

violation of Title VII, that Local 36 and he entered into an oral employment contract 

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Case 2:05-cv-03389-TMG Document 90 Filed 11/09/06 Page 4 of 64
which gave rise to a cause of action pursuant to 42 U.S.C. § 1981, and that Local 36 had 

committed the tort of intentional infliction of emotional distress. 

On the same date, the Equal Employment Opportunity Commission (EEOC) filed 

a Complaint against Conectiv, Steel Suppliers, AC Dellovade Inc., Matrix Services 

Industrial Contractors d/b/a Bogan Inc./Hake Group. In its Complaint, the EEOC alleged 

that those Defendants violated § 703(a)(1) of Title VII by subjecting certain individuals, 

including the Plaintiff, to a racially hostile work environment. The hostile work 

environment included racial graffiti on portable toilet walls, racially offensive comments, 

a hangman’s noose, and other racially derogatory remarks on the Conectiv job site. 

(EEOC Comp., ¶11.) Individually named as affected employees in the EEOC 

Complaints were Keith Riddick (Riddick), Slater, Roy Grimes (Grimes), and Jeffrey 

Campbell (Campbell). The EEOC did not name the Union as a Defendant. 

The other individually named Plaintiffs in the EEOC Complaint, like Slater, filed 

civil actions against Conectiv and their respective employers. Further, in the case of 

Plaintiff Riddick, Riddick not only named Conectiv and his employer but also his Union, 

International Brotherhood of Electrical Workers Local 375. On October 12, 2005, Judge 

Gene E.K. Pratter consolidated the EEOC action with the individual actions for purposes 

of discovery and pretrial disposition. 

 Extensive discovery thereafter ensued. For purposes of this Motion, the following 

depositions were taken by the parties: Plaintiff, Robert Kilpatrick (Kilpatrick) (Exh. G), 

Business Representative for the Union, Anthony David (David) (Exh. E), a member of 

the Union and a steward at the Conectiv site while the Plaintiff was employed by Steel 

Suppliers, Richard Frankenfield (Frankenfield) (Exh. B), President of the Union and a 

 2 

Case 2:05-cv-03389-TMG Document 90 Filed 11/09/06 Page 5 of 64
member of Local 36, Charles Mann (Mann) (Exh. A), member of the Union and steward 

at the Conectiv site for the period of time prior to David’s acting as steward Scott 

Tornetta, member of the Union and Apprentice Coordinator for the Joint Apprenticeship 

Training Committee of Ironworkers Local 36 (Committee), and Ruben Soto (Soto) (Exh. 

D). The parties have also exchanged Interrogatories and Answers and Requests for 

Production of Documents. Various documents were produced including but not limited 

to: the Collective Bargaining Agreement (CBA) (Exh. I, CBA) between Steel Suppliers 

and the Union, the Union’s out-of-work/referral list (Exh. J), the Constitution of the 

International Association of Bridge, Structural, Ornamental and Reinforcing Ironworkers 

(Constitution) (Exh. H), the Bylaws of Ironworkers Local 36 (Bylaws) (Exh. K), 

Ironworkers Local 36 logbook (Logbook), and the National Apprenticeship Training 

Standards (Standards) (Exh. L). 

 On September 22, 2006, Slater filed a Motion for Summary Judgment against all 

Defendants. In that Motion, Plaintiff only addressed the issues raised in his Complaint as 

they relate to the racial harassment allegations at the Conectiv work site under Title VII. 

Plaintiff made no mention of the Title VII allegations against Local 36 concerning its 

hiring hall/referral system, nor his § 1981 claim against Ironworkers Local 36.1

 Based upon the pleadings, depositions, Answers to Interrogatories and admissions 

on file and Affidavits, there are no genuine issues as to any material fact relating to the 

liability of Local 36 as to any of the conduct alleged by Slater at the Conectiv site or 

otherwise as set forth in his Complaint. Therefore, the Union is entitled to judgment as a 

matter of law. 

 

1

 Since Ironworkers 36 has filed this Motion for Summary Judgment and a Brief in Opposition to Plaintiff’s 

Motion for Summary Judgment, many of the facts and issues are the same. 

 3 

Case 2:05-cv-03389-TMG Document 90 Filed 11/09/06 Page 6 of 64
II. FACTS

 Ironworkers Local 36 is an unincorporated association consisting of 

approximately 160 to 170 members. (Exh. G, Kilpatrick Affidavit, ¶10.) Its purpose is 

to represent its members for the purposes of dealing with employers concerning 

grievances, labor disputes, wages, rates of pay, hours of employment, and conditions of 

work. (Exh. G, Kilpatrick Affidavit, ¶10.) As such, it is a labor organization as defined 

by the National Labor Relations Act (Act), by Section 2(5) of the Act, 29 U.S.C. § 

152(5). As a Local Union, it maintains its own structure in accordance with its bylaws 

and maintains an affiliation with the International Association of Bridge, Structural, 

Ornamental and Reinforcing Ironworkers. Consequently, it is subject to the Constitution 

of the International. It has a president, vice-president, business manager, treasurer, 

financial secretary, recording secretary, executive committee, and trustees. All officers 

are elected as required by the Constitution and Bylaws and applicable law. Local 36, by 

its Business Manager, appoints a steward on each job in accordance with the general 

working rules of the International. The steward’s function is to complete and file steward 

reports with the Local Union concerning reporting hours worked by members who work 

on job sites. They are also responsible for resolving grievances that may arise under the 

terms of the CBA between the various employers, which are signatories to CBA's with 

the Local Union. In the event they are unable to resolve those disputes to their 

satisfaction, they are responsible for submitting or notifying the business manager of the 

grievance. (Exh. G, Kilpatrick Affidavit, ¶7; Exh. G, Kilpatrick Affidavit, ¶¶8, 34; Exh. 

B, Dep. of Frankenfield, pp. 32, 43, 49-51; Exh. C, Dep. of Slater, pp. 220-239; and Exh. 

E, Dep. of David, pp. 36, 73, 95). 

 4

Case 2:05-cv-03389-TMG Document 90 Filed 11/09/06 Page 7 of 64
 The business manager’s responsibilities are to act as the representative for the 

members while they are working for the employers. He is in charge of the daily 

operations of the Local Union and has supervision over any salaried employees of Local 

36. He has final say over all jurisdictional and internal matters. He is the Chief 

Executive Officer of the Local Union. (Exh. G, Kilpatrick Affidavit, ¶¶4, 7; Exh. H, 

International Constitution, pp. 98-99.) 

 The president of the Union is responsible for presiding over regular and special 

meetings. He is responsible to appoint all committees. He has no responsibilities 

concerning the collective bargaining relationship with the employers, as to their 

implementation or regulation. He has no authority or power on the job site to act as the 

steward or business agent in terms of accepting, resolving, or presenting grievances or 

complaints. (Exh. G, Kilpatrick Affidavit, ¶26; Exh. B, Dep. of Frankenfield, pp. 33, 46; 

Exh. H, International Constitution, p. 96.; Exh. F, Dep. of Kilpatrick, p. 46.)

 Usually every three (3) years, the Local Union negotiates and executes a CBA 

between it and the area ironworker employers. The geographical jurisdictional areas that 

Ironworkers Local 36 covers the counties of Northampton, parts of Bucks, Lehigh, 

Carbon, Monroe and Pike in Pennsylvania and Warren and northern half of Hunterdon 

County in New Jersey. That agreement provides for payment of wage rates and 

contributions to various fringe benefit funds, including the Health and Welfare Fund, 

Pension Fund, an Annuity Fund, an Apprenticeship Training Fund, and various other 

national funds. (Exh. G, Kilpatrick Affidavit, ¶¶10-12.) It regulates hours of work, 

breaks, and other conditions of employment. Any employer who signs the CBA is 

subject to its terms and conditions. As such, when a particular construction project 

 5 

Case 2:05-cv-03389-TMG Document 90 Filed 11/09/06 Page 8 of 64
commences, an employer either has already is a signatory to the CBA or becomes one. In 

that event, its employees are entitled to the terms and benefits set forth in the CBA. (Exh. 

G, Kilpatrick Affidavit., ¶13.) 

 Employers hire employees through either as direct hires or through the Local 36’s 

hiring hall. A direct hire means the employer directly contacts an employee and assigns 

them work on a construction site. Alternatively, if the employer does not have sufficient 

employees, it contacts the Union hall and requests that Local 36 refer members to the 

employer for work. The employer is free to request particular employees through the 

Union hall in which case the Business Manager contacts the requested employee and that 

the employer has requested him for that construction site. Absent requests for particular 

employees, the Union maintains an out-of-work list and a referral list. The out-of-work 

list is a daily log sheet which the Business Manager maintains, showing the dates 

employees were referred to work and to which employers. It also shows employees who 

were last referred to work and the amount of time that they worked at various job sites. 

The referral list is a list maintained at the Union office. Any member who is not 

employed and who appears at the Local 36 Union hall is required to sign the referral list. 

The referral list shows the last date the member worked. The Business then Manager 

refers to the requesting employer’s members who are out of work, using both the logbook 

and the referral list. The Business Manager refers out-of-work ironworkers to the 

employer based upon the principle that the employee who last worked should be the first 

assigned out of the Union hall, assuming they are qualified to perform the work. If there 

are an insufficient number of workers at the Local 36 Union hall who have signed the 

 6 

Case 2:05-cv-03389-TMG Document 90 Filed 11/09/06 Page 9 of 64
referral sheet, then the Business Manager will iron workers who are out of work based 

upon his log book. (Exh. G, Kilpatrick Affidavit, ¶¶ 16-17.) 

Members of Local 36 are divided into journeyman Ironworkers and apprentices. 

Journeyman Ironworkers are fully skilled Ironworkers who have completed the four year 

apprenticeship program established by the Local 36 Joint Apprenticeship Committee. 

The Committee is composed of at least three (3) members representing employers, and 

three (3) members representing Local 36. The Union members who serve on the 

Committee are selected to serve by the President of Local 36. Two of the members are 

appointed as individual union members and the third is appointed as a consequence of his 

position as the Business Manager. The Committee selects the chairperson. Funding for 

the Committee comes from contributions by the employer in accordance with the CBA. 

As such, the Committee is what is commonly known as a Taft-Hartley Apprenticeship 

Fund formulated in accordance with Section 302 of the National Labor Relations Act, 29 

U.S.C. § 186(c)(6) and in accordance with Section 501(c) of the Internal Revenue Code. 

The Committee’s functions include the acceptance of applicants into the apprenticeship 

program for those who wish to become journeyman Ironworkers. The decision whether 

to accept an applicant as an apprentice is made by the Committee. Depending upon their 

length of time within the apprenticeship program, apprentices receive a percentage of the 

journeyman base rate. That percentage ranges from 50% to 100%. Further, the 

Committee has the discretion to recommend that a journeyman receive a percentage 

higher than the graduated scale in the event he has sufficient experience or training prior 

to becoming an apprentice, which would place him at a skill level commensurate with an 

 7 

Case 2:05-cv-03389-TMG Document 90 Filed 11/09/06 Page 10 of 64
amount of time worked greater than that actually worked. (Exh. G, Kilpatrick Affidavit, 

¶¶19-20; Exh. F, Dep. of Kilpatrick, pp. 10, 16.) 

Slater applied to the Committee to be accepted as an apprentice Ironworker in 

2001. Slater’s application as an apprentice was accepted. Likewise, as a consequence of 

his acceptance into the apprenticeship program, he applied for apprenticeship 

membership with the Union. That application was also accepted in 2001. Pursuant to the 

hiring hall system, Kilpatrick was responsible for referring members to signatory 

employers who needed labor. Slater immediately began working, commencing August 

2001 at various job sites. (Exh. G, Kilpatrick Affidavit, ¶24.) He eventually was referred 

to the Conectiv site and worked for Hake, Inc., Southern Steel, and Chicago Bridge and 

Iron up to the summer of 2002. (Exh. C, Dep. of Slater, p. 213.) Eventually, on July 26, 

2002 Kilpatrick again referred him for work by Steel Suppliers at the Conectiv site. 

Slater worked at that site as an apprentice Ironworker for Steel Suppliers continuously 

from July 26, 2002 until March 28, 2003. 

On March 28, 2003 Steel Suppliers laid him off, together with most of the other 

Ironworkers since the job responsibilities for Steel Suppliers at the Conectiv site had 

ceased. (Exh. E, Dep. of David, p. 104.) Slater alleges that he requested to be laid off. 

Kilpatrick recalls Slater appearing at the Union hall, requesting his name not be included 

on the out-of-work list since he had personal business to take care of in Tennessee. (Exh. 

G, Kilpatrick Affidavit, p. ¶.)

When Slater was still employed by Steel Suppliers commencing in July 2002, the 

job steward at the site was Billy Dinder. Dinder was eventually replaced in or about 

 8 

Case 2:05-cv-03389-TMG Document 90 Filed 11/09/06 Page 11 of 64
November 2002 by David, who acted as the steward through Slater’s employment by 

Steel Suppliers at Conectiv. (Exh. E, Dep. of David, p. 29.) Slater alleges that shortly 

after he commenced employment, he noticed racially offensive graffiti in the portable 

toilets throughout the Conectiv site. Some of the racially offensive comments were 

directed to him, others were generally racially offensive. Still others were obscene and 

derogatory to other members of Local 36, as well as other employees on the job site. 

(Exh. E, Dep. of David, p. 38.) 

Employees who worked for Steel Suppliers were provided with a trailer for 

lunches and breaks. Slater alleges that during lunches, racially offensive jokes were told 

by employees of Steel Suppliers. In particular, he referred to a statement that a Marlboro 

cigarette pack looked like a Ku Klux Klan insignia.

During Slater’s entire period of employment with Steel Suppliers at the Conectiv 

site from July 2002 to March 2003, Slater alleges he was subject to this racial 

harassment. He acknowledges, however, that at no time did he complain about the racial 

harassment to David as the steward. (Exh. C, Dep. of Slater, pp. 239-240.) He alleges 

that David did overhear racially derogatory jokes in the trailer. (Exh. C, Dep. of Slater, p. 

239.) Slater also acknowledges that he never asked the steward or Kilpatrick to file a 

grievance concerning the racial harassment under the terms of the CBA. (Exh. C, Dep. of 

Slater, p. 240.) Both Kilpatrick and David agree that Slater never requested that either of 

them file a complaint or grievance alleging racial harassment at the Conectiv work site 

under the terms of the conditions of the CBA or otherwise. (Exh. G, Kilpatrick Affidavit, 

¶22 and Exh. E, Dep. of David, pp. 37, 57, 63, 67, 73, and 97.) 

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Case 2:05-cv-03389-TMG Document 90 Filed 11/09/06 Page 12 of 64
Slater eventually returned from Tennessee and first signed up as available for 

work on the out-of-work referral list on July 17, 2005. He appeared at the Union hall 12 

times between July 17 and October 21. On three (3) of those occasions he reported at a 

time earlier than 9:35 a.m. All other occasions he reported at 9:35 a.m. or later in the 

day. (Exh. G, Kilpatrick Affidavit, ¶23.) During the summer of 2003 through and 

including the fall of 2003, work had slowed considerably in the jurisdiction of Local 36. 

Consequently, there was a substantial number of out-of-work members of Local 36 who 

availed themselves of the referral list. (Exh. G, Kilpatrick Affidavit, ¶23.) Eventually, in 

October, Slater was referred to work at a job site in Bloomsbury, New Jersey, working on 

Interstate 78. After that assignment, Slater never appeared at Local 36 again. He never 

contacted Kilpatrick concerning work referrals. He never signed the out-of-work list 

again. (Exh. G, Kilpatrick Affidavit, ¶24.) On November 25, 2003, he filed a Charge 

with the Equal Employment Opportunity Commission alleging racial discrimination 

pursuant to Title VII at the Conectiv job site by Conectiv, Steel Suppliers, and Local 

Union 36. (Exh. M.)

During all relevant time periods, Local 36 had two (2) employees. The first is the 

Business Manager, Robert Kilpatrick, and the other is a clerical secretary, Ann 

Heckenberger. Local 36 pays a salary to Kilpatrick and a salary to Heckenberger and 

provides fringe benefits. Its members, including Slater, paid monthly dues and working 

dues consistent with the CBA and the Constitution and Bylaws. Local Union 36 never 

paid wages to Slater or a paycheck to Slater. It never provided him with a W-2 or any 

other employment form. It never provided him with health insurance or any other fringe 

benefit. Wages and fringe benefits that Slater received were all paid by employers such 

 10 

Case 2:05-cv-03389-TMG Document 90 Filed 11/09/06 Page 13 of 64
as Steel Suppliers in accordance with the terms and conditions of the CBA. Slater was a 

member of Local 36 only. (Exh. G, Kilpatrick Affidavit, ¶¶14-15.) Once referred to a 

requesting employer, the method, process, and manner in which Slater performed his job 

duties was under the control and direction of the employer, such as Steel Suppliers. 

Local 36 did not direct or supervise his work. (Exh. G, Kilpatrick Affidavit, ¶7.) 

 11

Case 2:05-cv-03389-TMG Document 90 Filed 11/09/06 Page 14 of 64
III. ISSUES

A. WHETHER PLAINTIFF’S ALLEGATIONS CONCERNING 

CONDUCT DESCRIBED IN PARAGRAPHS 23 AND 24 OF HIS 

COMPLAINT FAILED TO SUPPORT HIS ALLEGATIONS OF RACIAL 

HARASSMENT WHEN THE ALLEGATIONS ARE ONE YEAR PRIOR TO 

THE CONDUCT OTHERWISE COMPLAINED ABOUT IN THE 

COMPLAINT, THE ALLEGATIONS SURROUND CONDUCT WHICH 

OCCURRED AT ANOTHER JOB SITE, THE ALLEGATIONS OCCURRED 

WHILE PLAINTIFF WAS EMPLOYED WITH AN EMPLOYER OTHER

THAN STEEL SUPPLIERS, AND THE ALLEGATIONS ARE NOT 

SUPPORTED BY THE ALLEGED EYEWITNESS? 

B. WHETHER THE PLAINTIFF’S COMPLAINT UNDER TITLE VII 

ALLEGING RACIAL HARASSMENT AGAINST LOCAL 36 SHOULD BE 

DISMISSED AS A MATTER OF LAW SINCE THERE IS NO EVIDENCE 

THAT THE PLAINTIFF ASKED THE UNION TO TAKE ANY ACTION 

WITHIN ITS REPRESENTATIVE CAPACITY, SUCH AS BY FILING A 

GRIEVANCE UNDER THE TERMS OF THE CBA OR OTHERWISE? 

C. WHETHER THE LOCAL UNION 36 IS ENTITLED TO JUDGMENT 

AS A MATTER OF LAW RELATING TO ALLEGATIONS OF VIOLATIONS 

OF TITLE VII ON THE GROUNDS THAT IT DISCRIMINATED ON THE 

BASIS OF RACE IN ITS MEMBERSHIP PRACTICES AND THE 

OPERATION OF ITS REFERRAL SYSTEM/HIRING HALL WHEN THERE 

HAS BEEN NO EVIDENCE PRESENTED BY THE PLAINTIFF TO 

SUPPORT THE ALLEGATION OTHER THAN HIS LACK OF REFERRALS 

AFTER HE STOPPED APPEARING AT THE UNION HALL FOR WORK? 

D. WHETHER PLAINTIFF’S COUNT ALLEGING A VIOLATION OF 

SECTION 1981 FAILS AS A MATTER OF LAW WHEN IT ALLEGES A 

CONTRACT OF EMPLOYMENT BETWEEN THE PLAINTIFF AND THE 

UNION WHEN THE PLAINTIFF WAS NEVER AN EMPLOYEE OF THE 

UNION? 

E. WHETHER PLAINTIFF’S COUNT AS TO INTENTIONAL 

INFLICTION OF EMOTIONAL DISTRESS SHOULD FAIL AS A MATTER 

OF LAW WHEN THERE ARE NO FACTS WHICH ESTABLISH ANY 

INTENTIONAL ACTION BY ANY AGENT OF THE UNION TO INFLICT 

EMOTIONAL DISTRESS? 

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Case 2:05-cv-03389-TMG Document 90 Filed 11/09/06 Page 15 of 64
IV. ARGUMENT

A. THE ALLEGATIONS OF PARAGRAPHS 23 AND 24 OF THE 

 COMPLAINT CANNOT SUPPORT ANY VIOLATION OF TITLE VII SINCE 

 THOSE FACTS RELATED TO A DIFFERENT EMPLOYER AT A 

 DIFFERENT JOB SITE DURING A DIFFERENT YEAR AND WERE DENIED 

 BY THE PLAINTIFF’S EYEWITNESS. 

As this is a Motion for Summary Judgment, the standard of review is well 

established. Under F.R.C.P. 56(c), “summary judgment is proper if the pleadings, 

depositions, answers to interrogatories, and admissions on file, together with the 

affidavits, if any, show that there is no genuine issue as to any material fact and that the 

moving party is entitled to judgment as a matter of law.” Celotex Corp. vs. Catrett, 477 

U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). 

In deciding a motion for summary judgment, the court must construe the facts and 

inferences in a light most favorable to the non-moving party. Pollock vs. American Tel. 

& Tel. Long Lines, 794 F.2d 860, 864 (3d Cir. 1986). The role of the court is not “to 

weigh the evidence and determine the truth of the matter, but to determine whether there 

is a general issue for trial.” Anderson vs. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 

S.Ct. 2505, 91 L.Ed. 2d. 202 (1986). A factual dispute is “material” if it might affect the 

outcome of the case under governing law. Id. “There is no issue for trial unless there is 

sufficient evidence favoring the non-moving party for a jury to return the verdict for that 

party.” Id. at 249. 

The Plaintiff’s Complaint almost exclusively surrounds facts and circumstances 

which occurred at the Conectiv site. The Plaintiff’s theory is that the racially offensive 

activities which occurred at the Conectiv site result in liability to Conectiv, Steel 

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Case 2:05-cv-03389-TMG Document 90 Filed 11/09/06 Page 16 of 64
Suppliers, and the Local 36. In support, Plaintiff’s verified paragraphs 23 and 24 provide 

as follows: 

 23. In or around December 2002 or January 2003, Richard 

Frankenfield, President of Local 36 and Timothy Hess, Plaintiff’s 

foreman, got into an altercation because Mr. Hess wanted Plaintiff to work 

with him and Mr. Frankenfield wanted Plaintiff at another place. Plaintiff 

stayed with Mr. Hess. After the argument, there was a drawing of Plaintiff 

and Mr. Hess in the port-o-potty with Plaintiff saying “eyes’ listen to you, 

Timmy.” 

 24. Charles Mann, journeyman, believes that Mr. Frankenfield 

put the picture in the port-o-potty. 

(Pl. Compl., pp. 23-24.) 

The uncontroverted evidence has revealed, however, that that allegation of facts is 

singularly inaccurate. 

Slater, Mann, and Frankenfield all testified that the facts alleged in paragraphs 23 

and 24 of the Complaint are inaccurate. First, the facts alleged in those two paragraphs 

did not occur in December 2002 or January 2003, they occurred in December 2001 or 

January 2002. Secondly, they did not occur at the Conectiv work site but instead 

occurred at a work site known as the Free Bridge, which is a bridge between 

Pennsylvania and New Jersey, connecting Easton, Pennsylvania and Phillipsburg, New 

Jersey. Third, the employer on that site was not Steel Suppliers but IEW. (Exh. C, Dep. 

of Slater, pp. 207-211 and Exh. A, Dep. of Mann, pp. 138-140.) Fourth, Mann testified 

that he never did tell Slater that Frankenfield engaged in any activities which could be 

construed as racially offensive as alleged in paragraph 24 of his Complaint. (Dep. of 

Mann, 03/31/06, pp. 143, l. 23-24, p. 144, l. 1-24, p. 145, l. 1-4.) Each one of these 

reasons supports a dismissal of these allegations. 

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Case 2:05-cv-03389-TMG Document 90 Filed 11/09/06 Page 17 of 64
 First, the fact that the events occurred in December 2001 and January 2002 make 

them untimely. Title VII plaintiffs in Pennsylvania must file their administrative 

discrimination charge within 300 days of the challenged employment action. Under Title 

VII, a plaintiff such as Slater who resides in Pennsylvania, which has an agency 

authorized to grant relief for federally prohibited employment discrimination (the 

Pennsylvania Human Relations Commission), must resort to the state remedy before they 

would be allowed access to federal judicial relief. See 42 U.S.C. § 2000(e)(5)(c) (Title 

VII). Such states are termed “deferral” states. Oscar Meyer and Company vs. Evans,

441 U.S. 750, 754-58, 99 S.Ct. 2066, 60 L.Ed. 2d 609 (1979). It is undisputed that 

Pennsylvania is a deferral state. See 43 P.S. §§ 955, 959; Sharpe vs. Philadelphia 

Housing Authority, 693 F.2d 24, 26 (3d Cir. 1982). Title VII plaintiffs who file in 

deferral states must submit their administrative discrimination charges within 300 days of 

the challenged employment action. See 42 U.S.C. § 2000(e)(5)(1). Colgan vs. Fisher 

Scientific Company, 935 F.2d 1407, 1413-15 (3d Cir. 1991). The conduct alleged in 

paragraphs 23 and 24 occurred at the latest on January 31, 2002. Slater filed his Charge 

with the EEOC on November 25, 2003, clearly more than 300 days from these alleged 

discriminatory acts. 

Further, even if Slater could allege some argument that this is a continuing 

violation, there is no evidence to support that since this was not at the Conectiv job site 

and the employer was not Steel Suppliers. This was at a job site over the Delaware River 

and the employer was IEW. This Complaint is grounded solely in the activities which 

occurred at the Conectiv site when Slater was an employee of Steel Suppliers from July 

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Case 2:05-cv-03389-TMG Document 90 Filed 11/09/06 Page 18 of 64
2002 to March 2003. The incident, to the extent it occurred, is not even remotely 

connected to the allegations of the Plaintiff’s Complaint. 

Further, the apparent reason for the allegation is to somehow allege that Local 36 

is responsible for some racially derogatory comments by assigning responsibility of those 

comments to Frankenfield. (See Plaintiff’s Compl., ¶23.) Unfortunately for Slater, the 

witness whom Slater alleges to have told him that Frankenfield committed the racially 

offensive act by writing racial slurs on a toilet wall denied ever telling Slater that 

occurred. Mann’s testimony is as follows: 

 Q. Let me ask you one last question. In Paragraph 24 of the 

Complaint, would you just look at that again. 

 A. Yes, okay. 

 Q. Did you tell Mr. Slater that? 

 A. No, I did not. I never said that to him. 

 Q. Do you have any idea or can you testify at all today as to 

where he would come up with that information? 

 A. He asked me who put that in there and I told him I didn’t 

know and that’s where that came – I don’t know where he came up with 

that one, but I never gave him that answer to that.

 Q. Just so we are clear for that the record, when you say “he 

asked me,” you mean Mr. Slater? 

 A. Right. Mr. Slater asked me if Rich Frankenfield was the 

one who wrote the picture in there. I never said that that was the guy who 

wrote it. How would I know that? 

 Q. That’s why I was asking. What did you tell Mr. Slater? 

 A. I didn’t know; but, you see, that’s who he believed did. 

 Q. That’s what my question was. You didn’t tell him that, did 

you? 

 

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Case 2:05-cv-03389-TMG Document 90 Filed 11/09/06 Page 19 of 64
 A. No, no, no. 

 Q. Did you tell him you believed Mr. Frankenfield did it? 

 A. No. I wouldn’t do that. That’s just starting – I don’t get 

involved in that. 

(Dep. of Mann, 03/31/06, pp. 143, l. 23-24, p. 144, l. 1-24, p. 145, l. 1-4.) 

Therefore, the allegations of paragraphs 23 and 24 fails as a matter of law to 

support any violation of Title VII. 

 B. THOSE PARTS OF COUNT II OF THE COMPLAINT 

AGAINST THE LOCAL 36 RELATING TO THE RACIAL HARASSMENT AT THE 

CONECTIV SITE SHOULD BE DISMISSED AS A MATTER OF LAW SINCE 

THERE IS NO EVIDENCE THAT THE UNION RATIFIED, INSTIGATED, OR 

ACTIVELY SUPPORTED ANY DISCRIMINATORY ACTS. 

 

A close review of the Plaintiff’s Complaint as it relates to Local 36 reveals two 

separate alleged violations of Title VII by the Local 36. Plaintiff sets forth the Union’s 

“conduct of discrimination” in paragraph 54 and its subparagraphs. Although not clearly 

articulated, the Plaintiff’s theories of illegal discrimination under Title VII by the Union 

arise (1) out of the racial harassment arising at the Conectiv site while Slater was 

employed by Steel Suppliers and (2) the Union’s operation of its exclusive hiring hall and 

job referral system.2

 Undoubtedly, this litigation in reality concerns the first issue and 

not the second, although the Union will also address the second issue.

Labor organizations are subject to the prohibition against racial discrimination 

under Title VII pursuant to § 703(c), 42 U.S.C. § 2000(e-2)(c). That section provides as 

follows: 

 

2

 Paragraph 54(a)-(e) cover the first category and 54(f)-(l) the second category of alleged discrimination. 

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Case 2:05-cv-03389-TMG Document 90 Filed 11/09/06 Page 20 of 64
 

 (c) Labor organization practices 

 It shall be an unlawful employment practice for a labor 

organization— 

 (1) to exclude or to expel from its membership, or 

otherwise to discriminate against, any individual because of his race, 

color, religion, sex, or national origin; 

 (2) to limit, segregate, or classify its membership or 

applicants for membership, or to classify or fail or refuse to refer for 

employment any individual, in any way which would deprive or tend to 

deprive any individual of employment opportunities, or would limit such 

employment opportunities or otherwise adversely affect his status as an 

employee or as an applicant for employment, because of such individual’s 

race, color, religion, sex, or national origin; or 

 (3) to cause or attempt to cause an employer to 

discriminate against an individual in violation of this section. 

(Federal Labor Laws, p. 1332.) 

This section of Title VII imposes duty and responsibility upon labor organizations 

such as Local 36 not to discriminate on the basis of race. However, it does not impose 

any liability upon the Local 36 under the admitted facts of this case. 

Judicial construction of this section of the Act commences with Goodman vs. 

Lukens Steel Company, 42 U.S. 656, 107 S.Ct. 2617, 96 L.Ed. 2d 572 (1987), through 

cases both in this circuit and other circuits, as well as District Court cases, and one State 

Supreme Court case. All of these cases are consistent in their holdings and clearly 

support the Union’s position that there is no liability in Title VII in this case. 

In Goodman, the evidence established that the Union had decided as a matter of 

policy not to file grievances under the terms of the CBA alleging complaints of 

 18 

Case 2:05-cv-03389-TMG Document 90 Filed 11/09/06 Page 21 of 64
discrimination by black members of the bargaining unit because the Company was hostile 

to such complaints. The evidence established that the Union feared that this hostility 

would make it harder for the Union to succeed in its dealings with the Company. The 

Supreme Court clearly found liability in that case since the basis for the Union’s decision 

whether or not to pursue a grievance was based upon the racial nature of the grievance. 

Subsequent to the Supreme Court’s decision in Goodman, there are three (3) 

seminal cases decided by the Third, Seventh and Eighth Circuits, all of which hold that a 

Union may be held liable under Title VII only if “the Union itself instigated or actively 

supported the discriminatory acts.” 

The Third Circuit in Anjelino vs. The New York Times Co., 200 F.3d 73 (3d Cir. 

1999) upheld the District Court’s dismissal of Title VII claims against the Union, 

“because the Union was not the employer of the appellants; this is so, even though some 

of the supervisors and workers who are alleged to have discriminated against the 

appellants may have been members of the Union.” Id. at 95. The Third Circuit stated 

that a Union may be held liable under Title VII when the record demonstrates, “that the 

Union itself instigated or actively supported the discriminatory acts allegedly experienced 

by the appellants.” Id. at 96. 

The Seventh Circuit in EEOC vs. Pipefitters Association Local No. 597, 334 F.3d 

656 (7th Cir. 2003) also had an opportunity to address the issue of what responsibility a 

Union has for racial discrimination on a construction job site. The facts of Pipefitters 

Local 597 are almost identical to this case. In Pipefitters Local 597, the EEOC bought a 

racial harassment claim under Title VII and § 1981 on behalf of eight (8) AfricanAmericans. The racial harassment that occurred consisted of graffiti on the portable 

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Case 2:05-cv-03389-TMG Document 90 Filed 11/09/06 Page 22 of 64
bathroom walls with slogans such as “Death to all niggers,” and “Fuck niggers”; 

placement of a swastika in an African-American employee’s toolbox; the posting of a Ku 

Klux Klan poster in a trailer used by African-American Pipefitters, and the display of a 

hangman’s noose. Contending that the Union was liable, the EEOC argued that “When 

the harassers and the targets are represented by the Union, the Union has exactly the same 

legal responsibility as the employer.” Id. at 659. 

The Seventh Circuit disagreed and held that (1) a Union does not have an 

affirmative duty to prevent discrimination in the workplace and (2) the Union was not 

liable on any theory of selective inaction. In finding that there was no affirmative duty 

on part of the Union, the Seventh Circuit reasoned principally on the theory of power and 

control: (a) the Employer, not the Union, controls the workplace, including control over 

the portable bathrooms; (b) the Union is not the Employer, but is the worker’s agent in 

dealing with the Company; (c) the Employer is in a better position than the Union to 

prevent and eliminate harassment because it can discipline employees; and (d) the 

Union’s power is more limited than that of the Employer in effectuating changes in 

personnel and work rules. Citing Goodman, the Court noted that the Union violates Title 

VII if it discriminates in the performance of its agency function but not otherwise. 

“Thus, a Union that refuses to accept blacks as members, or refuses to press their 

grievances, is guilty of discrimination. But if it merely fails to effectuate changes in the 

workplace – if for example, it urges the Company to take steps to prevent harassment and 

the Company fails to do so – the Union is not guilty of discrimination, although the 

Company is.” Id. at 659. 

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Case 2:05-cv-03389-TMG Document 90 Filed 11/09/06 Page 23 of 64
The Seventh Circuit did note, however, that liability could exist if the Union’s 

inaction to prevent racial harassment such as that which existed at the workplace in that 

case was selective inaction. The Court noted that there are two (2) types of such selective 

inaction. The first is where “A black worker asked the Union to grieve a Complaint, the 

Union refuses, though if the worker were white the Union would grieve his Complaint.” 

The Court noted this would be a clear violation of § 703(c) of Title VII. The second type 

of case would be one where the Union decided as a matter of policy not to grieve 

complaints of discrimination by black members of a bargaining unit because the 

Company was hostile to such grievances. These were essentially the facts in Goodman. 

Again, this would be clearly illegal under Title VII. But the Court specifically rejected 

that the Union had an affirmative duty to file grievances on its own or otherwise take 

affirmative action to prevent discrimination in the workplace. 

The other Circuit Court of Appeals decision that is instructive is Thorn vs. 

Amalgamated Transit Union, 305 F.3d 826 (8th Cir. 2002). The Plaintiff in Thorn

actually complained to the Union Steward that she was a victim of ongoing and 

unwelcome sexual advances, requests for sexual favors, and communications of a sexual 

nature by male co-workers and supervisors at her worksite. She accused members of the 

Union of the alleged sexual harassment. However, she did not file or attempt to file a 

grievance request with the Union against the employer. 

 Nothing that Thorn’s Complaint “does not allege 

that she requested (the Union) to file a sexual harassment 

grievance against (the Employer)”, the District Court 

dismissed the sexual harassment claims because, “Plaintiff 

has failed to allege conduct beyond passivity on the part of 

the ATU and the Local Union.” The Plaintiff argued that 

 21 

Case 2:05-cv-03389-TMG Document 90 Filed 11/09/06 Page 24 of 64
her Complaint was sufficient to state a sexual harassment 

claim because, “Unions have an affirmative duty under 

Title VII . . . to take remedial action to end discrimination 

amongst their members.” 

Id. at 832. 

The Eighth Circuit disagreed, holding as follows: 

 Though the Unions were prohibited from causing or 

assisting unlawful discrimination by Thorn’s employer, 

nowhere in either statute do we find language imposing 

upon unions an affirmative duty to investigate and take 

steps to remedy employer discrimination. See, E.G. 

Anjelino vs. New York Times Co., 200 F.3d, 73, 95-96 (3rd

Cir. 1999) (“while a union may be held liable under Title 

VII the record here does not demonstrate that the union 

itself instigated or actively supported the discriminatory 

acts allegedly experienced by the appellants. Therefore, the 

union is not liable.” Furthermore, imposing such a duty 

would place unions in an untenable position whenever one 

member accused another member of causing the employer 

to discriminate. 

*** 

 A Union, unlike an employer, is a democraticallycontrolled institution directed by the will of its constituents, 

subject to the duty of fair representation. Like other 

representative entities, Unions must balance the competing 

claims of its constituents. (Goodman, 482 U.S. at 688-89, 

107 S.Ct. 267 (Powell, J., concurring in part and 

descending in part). 

Since the Plaintiff did not allege that the Union refused to file a grievance or 

otherwise assert a sexual harassment claim against the Employer on her behalf, the 

Circuit Court affirmed the District Court and dismissed her Title VII complaint. 

Finally, the Alaska Supreme Court has had the opportunity to rule on this 

 22 

Case 2:05-cv-03389-TMG Document 90 Filed 11/09/06 Page 25 of 64
identical issue. This was another sexual harassment claim in which the Plaintiff sued the 

Union because of threatening and vulgar graffiti in her work area and the men’s 

outhouse. There were also altered pictures of her with sexual profanity and other 

sexually derogatory drawings. The Plaintiff reported the incidents to her stewards on the 

job site. However, she did not ask any of the stewards or any other union official to file a 

grievance under the terms of the CBA for any of these instances. Instead, she quit her 

employment. She then sued her Union, basing her arguments on Goodman. 

The Alaska Supreme Court rejected her arguments, citing with approval 

Pipefitters Local 597, Thorn, and Anjelino. It held as follows: 

 Most federal courts that have addressed the issue have not imposed 

liability on a union for failing to remedy a discriminatory work 

environment. [FN19] In EEOC v. Pipefitters Ass’n Union Local 597, the 

Seventh Circuit explained that unions have no duty to remedy racial or 

sexual harassment because they typically do not control the workplace: 

 The employer is in a better position than the union to 

 prevent or eliminate harassment because it can discipline its 

 employees; the union cannot. If a worker complains to the union 

 that he is being harassed, all the union can do is file a grievance on 

 his behalf against the employer; the union cannot eliminate the 

 harassment itself – that is the company’s responsibility . . . A 

 further consideration is that members of different unions, or union 

 and nonunion workers, often find themselves working at the same 

 site . . . The pipefitters union had no control over workers 

 belonging to other union . . . [ [FN 20] ] 

 However, the court noted that its analysis might differ in 

 cases where a collective bargaining agreement delegates more 

 power to a union to control the workplace. [FN21] 

 In addition, the Seventh Circuit did not require a union to 

 take the initiative to address workplace harassment to the limited 

 extent that it can because “inaction, unless invidious, is not 

 discrimination in any accepted sense of the term.” [FN22] 

 Imposing such an affirmative duty might force a union to take 

 23 

Case 2:05-cv-03389-TMG Document 90 Filed 11/09/06 Page 26 of 64
 sides in conflict with its statutory duty to fairly represent all 

 workers. [FN23] The Seventh Circuit thus concluded that “[i]f [a 

 union] discriminates in the performance of its agency function, it 

 violates Title VII, but not otherwise.” [FN24] Because no one 

 attempted to file a grievance or even complained to a union official 

 in his representative capacity in Local 597, the union had no duty 

 under Title VII to address the racial harassment at the workplace. 

 [FN25] 

Id. at 1075. 

In further response to plaintiff’s arguments, the court in Ellison, clarified 

some of the finer distinctions often missed in cases: 

 Ellison cites to a number of cases that she asserts establish 

 that “a union may not sit idly by when it knows or should know” of 

 workplace sexual discrimination. First, none of these cases holds 

 that constructive notice along is enough to impose liability on a 

 union for an employer’s discrimination. [FN26] Second, even 

 though some of these cases ostensibly follow the acquiescence 

 theory, they base Title VII liability on the unions’ own actions, not 

 simply their inaction in the face of actual knowledge of 

 discrimination. [FN27] The unions themselves were accused of 

 discriminating in these cases by denying members’ requests to 

 pursue grievances out of deference to the desires of the harassers 

 [FN28] or because of policies not to assert sexual harassment-

 based grievances. 

 *5 [3] We are persuaded by the consensus view of the 

 federal authorities represented by such cases as Local 597, [FN30] 

Thorn v. Amalgamated Transit Union, [FN31] and Anjelino v. New 

 York Times Co. [FN32] Therefore, we conclude that under 

 AS.18.18.220, a union may only be liable on account of an 

 employer’s discriminatory harassment when (1) the harassed 

 worker asks the union to take action within its representative 

 capacity, such as by filing a grievance, and (2) the union decides 

 not to pursue the complaint for discriminatory reasons. 

Id. at 1075-76. 

Eliserio vs. USW Americo Local 310, 398 F.3d 1071 (8th Cir. 2005)(citing with 

approval Thorn and Anjelino) is an instructive case because in that matter, one of the 

 24 

Case 2:05-cv-03389-TMG Document 90 Filed 11/09/06 Page 27 of 64
Plaintiff’s arguments was that the Union instigated or actively supported racial graffiti. 

In particular, it argued that it was likely that Union members created the graffiti. The 

Court rejected this argument, noting that even if some Union members created the graffiti 

does not give rise to a Title VII claim against the Union. Not only do unions have no 

duty to take remedial action for the discriminatory acts by individual members, but it was 

the Plaintiff’s burden to show that the Local Union, as an organization, instigated or 

actively supported their racially harassing graffiti. Id. at 1077. Of course, Slater has not 

even attempted this argument since there is no evidence that members of Local 36 created 

the graffiti, much less that the Local 36 as an organization instigated or actively 

supported the graffiti. In fact, it is arguable that non-Local 36 members created the 

graffiti since some of the graffiti stated “Who let J.T. into Local 36?” J.T. is a nickname 

for Slater. 

In summary, all of these cases hold that the Union has no affirmative duty to 

remedy racial discrimination in the workplace. 3 It has an affirmative duty to process 

grievances in a non-discriminatory basis should a member file or request to file a 

grievance. But absent such a grievance or request for a grievance, it owes no affirmative 

duty even if the alleged discriminatory harassment is brought to its attention by the 

Plaintiff. 

The facts of this case are less in favor of the Plaintiff than the Plaintiffs in 

Pipefitters, Thorn, Ellison, or Eliserio. In each of those cases, the Plaintiff brought to the 

Union’s attention the alleged discriminatory act, although none of the Plaintiffs asked the 

Union to file a grievance. In this case, Slater and every witness who has testified agreed 

 

3

See also Madsen vs. Milton Hershey School, Case Nos. CV-05-4, 2005 WL 1651961 (M.D. PA 2005). 

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Case 2:05-cv-03389-TMG Document 90 Filed 11/09/06 Page 28 of 64
that he never brought the discriminatory actions to the attention of the Union or requested 

that the Union file a grievance or file a grievance on his own under the terms of the CBA. 

Consequently, his claim must fail under Title VII. 

David was the Grievant’s steward on the job site during the relevant time period. 

David was directly asked on at least five occasions whether Slater asked him to file a 

grievance concerning the alleged racial harassment. The responses are as follows: 

 Q. Between June and August of 2002, did anyone ever 

complain to you about the racial graffiti in the portable toilets on the 

Conectiv worksite in Bethlehem, Pennsylvania? 

 MR. TAGLIOLI: I object to the form. 

 MR. COOK: Go ahead. 

 THE WITNESS: No. 

(Dep. of David, 04/03/06, p. 27, l. 20-24, p. 28, l. 1-3.) 

 Q. During the time that you were the steward for Steel 

Suppliers on the Conectiv project in Bethlehem, Pennsylvania, did you 

ever receive a complaint of racial harassment? 

 A. No. 

(Dep. of David, 04/03/06, p. 36, l. 24, p. 37, l. 1-4.) 

 Did James Slater ever talk to you about the racial graffiti on 

the portable toilets? 

 A. No. 

 Q. Did James Slater ever talk to you about any of the graffiti 

on the inside of the portable toilets? 

 A. No. 

 Q. Did James Slater ever complain to you about any racial 

problems he was experiencing on the Conectiv job site in Bethlehem, 

Pennsylvania? 

 26 

Case 2:05-cv-03389-TMG Document 90 Filed 11/09/06 Page 29 of 64
 A. No. 

(Dep. of David, 04/03/06, p. 57, l. 12-22.) 

 Q. It’s your testimony that James Slater never came to you to 

complain about racial graffiti in the portable toilets, correct? 

 A. Correct. 

 Q. Or any other racial issue he was experiencing on the 

Conectiv project in Bethlehem, Pennsylvania, correct? 

 A. Correct. I had no idea there was any racial tension on the 

job at all or I would have taken more notice to what was written in the 

porta-johns or just everything that was going on. 

(Dep. of David, 04/03/06, p. 62, l. 19-24, p. 63, l. 1-5.) 

 Q. Did anybody ever talk to you, whether above you or below 

you, about the writings on the wall? 

 A. No. 

(Dep. of David, 04/03/06, p. 97, l. 8-10.) 

 

Kilpatrick’s testimony was the same. His affidavit is consistent with David’s 

testimony; i.e., Slater never brought to his attention, much less filed a grievance or asked 

a grievance to be filed, alleging racial discrimination. (RKF Affidavit.) 

To that extent, the testimony of every witness universally acknowledges the 

procedure for complaints and grievances that arise at the work site. (Exh. G, Kilpatrick 

Affidavit, ¶7; Exh. G, Kilpatrick Affidavit, ¶¶8, 34; Exh. B, Dep. of Frankenfield, pp. 32, 

43, 49-51; Exh. C, Dep. of Slater, pp. 220-239; and Exh. E, Dep. of David, pp. 36, 73, 

 27 

Case 2:05-cv-03389-TMG Document 90 Filed 11/09/06 Page 30 of 64
95). In particular, the CBA between the parties sets forth the grievance procedure in 

Article XII (pp. 24-25.) That procedure provides that if there is any dispute concerning 

the interpretation or application of the CBA, there shall be an attempt to resolve the 

matter first between the foreman and the steward on the job and/or the business agent. In 

the event it is not resolved at the steward level, an attempt to resolve the matter will be 

done by discussion between the business agent and the employer. If there is no 

resolution, then the Union can proceed to arbitration under the rules of the American 

Arbitration Association. So, for instance, had Slater asked the steward or the business 

manager to file a grievance on his behalf alleging that Steel Suppliers was violating the 

anti-discrimination provisions of the CBA (Article VIII, Section 8) and David or 

Kilpatrick had refused to do so because one of the discriminatory reasons described in 

Pipefitters Local 597 then perhaps Slater would have a viable Title VII claim. However, 

Slater never asked the Union to take any action on his behalf. Slater’s testimony on that 

issue is clear. Slater was familiar with the grievance procedure, as he had acted as a 

steward with an employer other than Steel Suppliers. (Dep. of Slater, 02/28/06, p. 20.) 

 Q. Is that your complaint about Local 36 in this particular 

case, that the local did nothing about the comments that were being made? 

 A. That would be, again, the chain of command, the shop 

steward. 

 Q. Did you speak to Mr. David concerning your allegations of 

racial harassment? 

 A. No. Can I finish? 

 Q. If it’s responsive to my question. 

 A. Yes, it is. Because he witnessed all of the racial comments, 

he was in the room. So me saying anything to him would be obsolete. 

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Case 2:05-cv-03389-TMG Document 90 Filed 11/09/06 Page 31 of 64
 Q. Did you speak to him concerning the racial statements or 

insignias that were in the toilets? 

 A. No. 

 Q. Just as a follow-up on that, you knew Mr. David reasonably 

well from your working there? 

 A. How well? I knew of Mr. David. 

(Dep. of Slater, 02/28/06, p. 239, l. 2-19.) 

The Complaint against Local 36 is based upon an unsound and clearly rejected 

legal theory. The Plaintiff’s entire theory is now and has always been since the date he 

filed his charge with the EEOC that the Union has an affirmative duty to correct 

workplace discrimination. (Exh. M.) The Plaintiff’s theory has never been that the 

Union refused to process complaints or grievances by Slater concerning racial 

discrimination at the work site. To the contrary, even now at this stage in the litigation, 

the Plaintiff still asserts that whether or not Slater filed a grievance or requested a 

grievance to be filed is not the issue. The issue is whether or not the Union was aware of 

the racial harassment and did nothing about it.4

 Unfortunately for the Plaintiff, his theory 

is not supported by any judicial authorities. To the contrary, even in those cases such as 

Thorn, Pipefitters Local 597, and Ellison where the Plaintiffs complained to the stewards 

or business representatives concerning the racially or sexually discriminatory conduct, 

liability did not occur to the Union’s absent specific evidence that the Union refused to 

process the Grievance because of racial or gender-based reasons. This case is even more 

compelling because Slater admits, and Kilpatrick and David acknowledge, he did not 

even complain, file a grievance, or request that a grievance be filed against Steel 

 

4

 Defendant will address the Plaintiff’s arguments more fully in its Brief in Opposition to Plaintiff’s Motion 

for Summary Judgment. 

 29 

Case 2:05-cv-03389-TMG Document 90 Filed 11/09/06 Page 32 of 64
Suppliers. Thus, Count II of his Complaint should be dismissed to the extent it alleges a 

violation of Title VII for a racially hostile work environment as the Conectiv site in 

Bethlehem. 

Finally, it is highly instructive how this litigation arose. The Plaintiff filed a 

charge with the EEOC against Local 36 alleging violations of Title VII because of the 

activities at the Conectiv site. The Plaintiff also filed charges against Conectiv and Steel 

Suppliers, the owner of the site and the Plaintiff’s employer at the site. The EEOC found 

merit in those charges as to Conectiv and Steel Suppliers and filed a Complaint against 

both of them. It did not file a Complaint against Local 36. There is a reason for that 

decision. There is no basis in law to support Plaintiff’s theory that Local 36 had an 

affirmative duty to eliminate racial discrimination in the workplace. The EEOC has 

tacitly acknowledged this by not filing a Complaint against Local 36, since the clear and 

established case law commencing with Goodman and all the afore-cited cases do not 

impose liability upon a local union under these circumstances. There is no evidence that 

the Local 36 instigated, ratified, or actively supported discriminatory acts, either through 

direct intentional action at the job site by its agents or by refusal to process grievances 

because of a racially discriminatory reason. There is no evidence any of that occurred in 

this case and therefore the EEOC did not sue Local 36. 

 C. THE PLAINTIFF’S ALLEGATION OF A VIOLATION OF TITLE VII 

BY LOCAL 36 IN THE MANNER WHICH IT OPERATED ITS HIRING 

HALL/REFERRAL SYSTEM SHOULD BE DISMISSED SINCE THERE IS NO 

EVIDENCE OF ANY RACIAL DISCRIMINATION. 

 1. There is no evidence of racial discrimination, specifically as to 

Slater or generally as to other unnamed individuals. 

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Case 2:05-cv-03389-TMG Document 90 Filed 11/09/06 Page 33 of 64
The Plaintiff’s Complaint establishes no factual allegations whatsoever in support 

of his conclusionary statements in paragraph 54 of his Complaint that Local 36 violated 

Title VII by operating its hiring hall/referral system in a racially discriminatory fashion. 

In contrast to the very specific factual allegations concerning racial harassment at the 

Conectiv site, there are no facts alleged in the Complaint in support of Plaintiff’s 

allegations about the hiring hall/referral system. The reason for the lack of any factual 

assertions concerning the referral system/hiring hall is that there is no evidence and none 

has been developed in discovery. Since there are no factual allegations in the Complaint, 

it is somewhat difficult for Local 36 to address potential claims by the Plaintiff. 

However, to ensure that the matter is addressed and dismissed, the Local 36 will assume 

that the Plaintiff may raise arguments even though there are no facts to support them. 

The only section of the Complaint in which Slater alleges discrimination in the 

operation of the hiring hall and referral system is paragraph 54(f)-(l). The factual record 

that has developed is that Slater was unable to present any evidence whatsoever 

concerning any of these allegations. (Exh., C, Dep. of Slater, 02/28/06, pp. 224-236.) 

Nowhere does Slater allege any facts to support his allegations. 

The reason that Slater was unable to allege any facts in support of an allegation 

that the Local 36 was discriminatory in any fashion is that there is no evidence. Every 

black applicant who requested participation in the apprenticeship program or membership 

in the Local was accepted for membership. (Exh. G, Affidavit of Kilpatrick, ¶21.) 

Further, the referral and hiring hall system was operated in a completely nondiscriminatory fashion. Union members were referred to requesting employers three (3) 

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Case 2:05-cv-03389-TMG Document 90 Filed 11/09/06 Page 34 of 64
ways. First, if an Employer makes a request for that particular employee, the business 

manager contacts the member and notifies him that the Employer has requested his 

services. Second, if the employee contacts the business manager requesting employees 

with particular skills or abilities, then only those employees who have signed the referral 

sheet or have not worked according to the logbook that have those skills and abilities are 

sent to work for the requested employer. Finally, if there are no skill and ability issues, 

then the Union refers members to work who have signed the referral sheet and are at the 

Union hall, ready to be dispatched in the event they are already to be sent to work for the 

requested employer. In the event there are insufficient number of employees who are at 

the Union hall who have signed a referral sheet, then the business manager contacts 

members based upon those who are out of work based upon his logbook. (Exh. G, 

Kilpatrick Affidavit, ¶¶16-17.) 

The Defendant has no burden whatsoever in this matter and the burden is on the 

Plaintiff to establish some evidence of racial discrimination in the operation of the hiring 

hall and referral system. Lucas vs. International Association of Bridge, Structural and 

Ornamental Ironworkers, 741 F.Supp. 136, (N.D. OH (1989)) is instructive. In Lucas,

the Plaintiffs sued under Title VII alleging that the Union’s hiring hall was racially 

discriminatory. The Court noted that there were two (2) theories of liability under Title 

VII, disparate treatment and disparate impact. Disparate treatment requires 

discriminatory motive, but disparate impact only requires evidence that employment 

practices which are adopted without a deliberately discriminatory nature, may in 

operation be the functional equivalent to discrimination. Noting that disparate impact 

cases require the Plaintiff to identify a specific employment technique which has a 

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discriminatory effect and therefore, Plaintiff must “offer statistical evidence of a degree 

sufficient to show the practice in question has caused the exclusion of application for jobs 

or promotions because of their membership in a protected group. Id. at 139. The 

Plaintiff in Lucas, as opposed to Slater, actually had a statistical expert to present 

evidence showing a disparity between the amount of hours worked by black ironworkers 

and all other ironworkers. The analysis was based on the total number of hours 

accumulated by ironworkers of different races, which purportedly showed the Union’s 

referral practice had a discriminatory effect. 

The hiring system in Lucas was exactly the same as the present one; i.e., 

employees can find employment in one (1) of three (3) ways. The first was a referral 

system where an individual signs an out-of-work book and that upon signing the register, 

they are placed at the bottom of the list. As the employers request workers, the Union 

refers those listed on the register in successive order that their names appear thereon. The 

Court noted there was no evidence that any Plaintiff was denied from signing the referral 

book, nor any evidence that any of the systems were not routinely followed, the Plaintiffs 

nonetheless complained of discrimination because of a statistical analysis. The Court 

rejected the expert opinion noting that the statistics presented do not take into account 

other factors which could have accounted for the number of hours worked by black 

ironworkers vs. white ironworkers. 

In any case, there is no evidence whatsoever presented by Slater to even make the 

disparate treatment argument. There is no statistical evidence presented, nor has any 

been identified in discovery. The only possible claim that Slater may raise is that he was 

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Case 2:05-cv-03389-TMG Document 90 Filed 11/09/06 Page 36 of 64
not referred to work, even though he signed the referral sheet, and that the reason was 

because of his race. This argument has no merit. 

First, Slater was proffered no evidence whatsoever that race is the reason he was 

not referred to work. In fact, Slater’s testimony was that he was not referred to any work 

after he went to his attorney in late November to file his EEOC charge. He then alleged 

the Union refused to assign him work after that date. (Exh. C, Dep. of Slater, 02/28/06, 

p. 225.) 

That evidence standing alone does not establish racial discrimination. Slater 

would first have to show that he was available for work. The evidence reveals that after 

Slater voluntarily left employment in March of 2003, he did not return to the Union hall 

for work until July 17, 2003. For the period from July 17 to October 21, over three (3) 

months, Slater appeared at the Union hall to sign up for work 12 times. Out of those 12 

occasions, he appeared early in the morning only three (3) times on July 23, October 3, 

and October 7. The other times he appeared at times of the day for which there was no 

work to which the Local Union could have referred him. (Exh. G, Affidavit of 

Kilpatrick, ¶23.) Nonetheless, Slater acknowledged that in October 2003 he was referred 

to another job at IEW in Bloomsburg, New Jersey. (Exh. C, Dep. of Slater, p. 24.) That 

referral occurred in October 2006. He then signed the referral sheet at 10 a.m. He then 

never appeared again. Thus, even though Slater had been referred to work as recently as 

October 2003, he elected not to remove himself from the referral system by not 

appearing. 

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Apparently it is Slater’s argument that because he did not have work after he 

returned from Tennessee in July 2003, the Union engaged in discriminatory practices. 

There are numerous reasons why Slater was not referred to work until October 2003. 

First, there had been a general slowdown in labor and there were substantial numbers of 

out-of-work ironworkers. Most of them were journeyman as opposed to Slater, who was 

an apprentice. Journeymen because of their skill and ability, clearly take preference on 

referrals rather than apprentices. Secondly, while Slater only signed up for work on the 

referral system on 12 days in the space of over three (3) months, and out of those 12 days, 

he only appeared on three (3) occasions at a time early enough to be sent to a potential 

referring employer. All of these reasons are clearly non-discriminatory reasons for Slater 

not working. 

Allegations of racial discrimination under Title VII in the operation of a hiring 

hall or referral system are subject to the standards set forth in McDonnell Douglas Corp. 

vs. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d. 668 (1973). First, the Plaintiff must 

prove by a preponderance of the evidence a prima facie case of discrimination. 

Patterson, 491 U.S. at 186, 109 S.Ct. at 2377-78; Burdine, 450 U.S. at 252-53, 101 S.Ct. 

at 1093-94. Second, once the Plaintiff proves a prima facie case, the burden shifts to the 

Defendant to produce evidence of legitimate, non-discriminatory reasons for the 

challenged action. Patterson, 491 U.S. at 187, 109 S.Ct. at 2378; Burdine, 450 U.S. at 

253, 101 S.Ct. at 1093-94. Third, if the Defendant meets this burden, the Plaintiff must 

prove by a preponderance of the evidence that Defendant’s asserted reasons are merely 

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pretextual. Patterson, 491 U.S. at 187, 109 S.Ct. at 2378; Burdine, 450 U.S. at 253, 101 

S.Ct. at 1093-94. The ultimate burden of persuasion as to discriminatory intent remains 

at all times with the Plaintiff. Patterson, 491 U.S. at 187, 109 S.Ct. at 2378; Burdine,

450 U.S. at 253, 101 S.Ct. at 1093-94. 

In applying the McDonnell Douglas analysis, the Plaintiff must establish a prima 

facie case against the Local by showing that (i) he belongs to a racial minority; (ii) he 

was qualified and requested a referral to a job to which the Local was referring 

applicants; (iii) despite his qualifications, he was not referred and (iv) after his nonreferral, the Local continued to refer applicants with Plaintiff’s qualifications to available 

jobs. See McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824; Mills vs. International 

Brotherhood of Teamsters, 634 F.2d 282, 285 (5th Cir. 1981); NAACP Labor Committee 

of Front Royal Virginia vs. Labors International Union of North America, 902 F.Supp. 

688 (W.D.Va. 1993). 

Slater has not made out a prima facie case. He has not presented any evidence 

other than establishing he belonged to a racial minority. He has not established he was 

qualified and requested a referral to a job which Local 36 referred applicants. He has 

certainly not identified what particular job to which he was not given a referral, and that 

others were. He certainly has not established that the Local continued to refer applicants 

with his qualifications to any available jobs. And even if somehow the Court could 

construe blanket assertions as the required evidence needed to make out a prima facie

case, he has failed to rebut the Defendant’s proffered non-discriminatory reasons for his 

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lack of referral after July 17, 2003 when he first signed the referral list. Undoubtedly, 

there is no evidence to support this part of Count II and it should be dismissed. 

 2. The allegations of Count II of the Plaintiff’s Complaint 

concerning the operation of the hiring hall and referral system are not 

reasonably contemplated within the underlying charge. 

 

In addition, to the lack of a prima facie case, Plaintiff’s Complaint as to the hiring 

hall and referral system should be dismissed for a procedural reason. It is now elemental 

that a Plaintiff under Title VII must file a timely Charge with the EEOC or the PHRC 

before initiating a suit in federal court. Love vs. Pullman, 404 U.S. 522, 91 S.Ct. 616, 36 

L.Ed. 2d 679 (1972). The Third Circuit has held that the requirement that an aggrieved 

party file a Complaint with the EEOC before filing in federal court is an integral part of 

Title VII statutory screen. Ostapowicz vs. Johnson, 541 F.2d 394 (3rd Cir. 1976). “While 

preliminary requirements for a Title VII action are to be interpreted in a non-technical 

fashion, the aggrieved person is not permitted to bypass the administrative process.” Id.

at 398. Thus, the parameters of the civil action in the District Court are defined by the 

scope of the EEOC investigation. Only claims which can be reasonably expected to grow 

out of the charge of discrimination filed with the EEOC can be raised to the District 

Court level. See Dockins vs. Flour Daniel/GTI, Inc., 2000 WL 1469792 (E.D.Pa. 2000). 

In this case there is no mention whatsoever in the EEOC charge that Local 36 

discriminated on the basis of race in the operation of its hiring hall, referral system, or 

any other activity, other than the allegations concerning racial discrimination at the 

Conectiv site in Bethlehem. (Exh. M, EEOC Charge.) There is no connection between 

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Case 2:05-cv-03389-TMG Document 90 Filed 11/09/06 Page 40 of 64
the allegations in Count II concerning discriminatory treatment of minorities as it relates 

to the hiring hall or referral system, promotions, or any other activities and the EEOC 

Charge. 

The scope of the EEOC charge defines the parameters of the civil action. The 

scope of the EEOC charge concerns only the alleged discriminatory actions at the 

Conectiv site. It alleges nothing else whatsoever. Therefore, Slater’s allegations of Title 

VII violations for anything other than the actions at the Conectiv site; e.g., discriminatory 

operation of the hiring hall, referral system, membership, retention, or other activities of 

Local 36 on a general basis should be dismissed. See Antol vs. Perry, 82 F.3d 1291 (3rd

Cir. 1996). There is nothing in the EEOC charge which fairly encompasses anything 

other than the Conectiv allegations. See also, Spindler vs. SEPTA, 47 Fed.Appx. 92 (3rd

Cir. 2002)(not selected for publication and not precedential). 

 3. To the extent there is any allegation of discriminatory illegal 

 hiring practices by local 36, the defendant has filed the action against the 

 wrong party.

While there are no factual allegations in the Complaint or otherwise raised in 

discovery concerning discriminatory hiring hall/referral system practices, presumably 

Slater’s theory is that the Local 36 discriminated on the basis of training, retraining, and 

upgrading programs. (Plaintiff’s Compl., ¶54(f).) While there is no evidence to support 

those allegations, since they stand barely, the Defendant will address them nonetheless. 

As established by Kilpatrick’s affidavit, the Local 36 Joint Apprenticeship 

Committee is a separate entity from Local 36. It is a Taft-Hartley Fund, administered by 

a joint number of Union and employer trustees. It is separately funded through 

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Case 2:05-cv-03389-TMG Document 90 Filed 11/09/06 Page 41 of 64
contributions under the terms of the CBA. (Exh. I, CBA. See Article VI, Section 9.) It 

is a separate entity, both under the National Labor Relations Act, as well as Internal 

Revenue Code. It and not Local 36, determines the acceptance into the program and 

movement through the program as an apprentice. (Exh. G, Kilpatrick Affidavit, ¶19.) 

The operation of an apprenticeship program separate from the Local Union is not unique 

and is in fact contemplated by statute. (29 U.S.C. § 186 (c)(6).) Just as importantly, 

many plaintiffs, unlike Slater, have recognized this and filed Title VII actions against 

apprenticeship committees for Title VII violations as opposed to the Local Unions. See 

for example, Drake vs. Steamfitters Local Union 420, 144 Fed.Appx. 932, 2005 WL 

1950877 (3rd Cir. Court of Appeals 2005, Case No. 05-1493, (not selected for publication 

and not precedential); Webb vs. International Brotherhood of Electrical Workers Local 

654, Case No. 04-3613, 96 FEP 1215 (E.D.Pa. 2005.) 

Therefore, even if Slater somehow raises some factual assertion, which he has not 

done through the close of discovery, that the Apprenticeship Program was run in a 

discriminatory fashion, he has filed an action against the wrong party. The 

Apprenticeship Committee has not been named as a party in this matter and therefore any 

allegations alleging improper administration of the Apprenticeship Program should be 

dismissed since Local 36 does not administer the Program – the Committee does so. 

 D. PLAINTIFF’S CLAIM UNDER §1981 SHOULD BE 

DISMISSED AS A MATTER OF LAW SINCE IT ALLEGES AN ORAL 

CONTRACT OF EMPLOYMENT BETWEEN THE PLAINTIFF AND 

LOCAL UNION 36 AND THE PLAINTIFF WAS NEVER AN 

EMPLOYEE OF LOCAL 36. 

 

Plaintiff alleges in Count IV of his Complaint that he is entitled to relief under 42 

U.S. § 1981 on the basis of the following allegations: “In or about 2002, Plaintiff entered 

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into an oral contract wherein Defendant Union employed Plaintiff as a welder.” 

(Plaintiff’s Compl., ¶73.) Plaintiff then goes on to allege that the Union offered the 

Plaintiff a full-time position as an employee and then describes the oral employment 

contract as one in which the Union offered him full-time employment, equal opportunity, 

and fair and equitable treatment without racial slurs or insults. (Plaintiff’s Compl., ¶75.) 

He then notes that based upon the Union’s promises under this contract, he “put forth his 

best effort and performed all job duties assigned to him and satisfactorily fulfilled all of 

his job duties and tasks.” (Plaintiff’s Compl., ¶75.) 

But Slater was never an employee of Local Union 36 and therefore this count 

must be dismissed. Section 1981 provides: 

 All persons within the jurisdiction of the United States shall have 

the same right in every State and Territory to make and enforce contracts, 

to sue, be parties, give evidence, and to the full and equal benefit of all 

laws and proceedings, for the security of persons and property as is 

enjoyed by white citizens, and shall be subject to light punishment, pains, 

penalties, taxes, licenses, and exactions of every kind, and to no other. 

(42 U.S.C. § 1981.) 

Section 1981 provides a private cause of action for intentional discrimination 

only. Pryor vs. National Collegiate Athletic Association, 288 F.3d 548, 562 (3rd Cir. 

2002). To establish a claim under this section, Plaintiff must show that: (1) he belongs 

to a racial minority; (2) Defendant had an intent to discriminate on the basis of race; and 

(3) the discrimination concerned one or more of the activities enumerated in § 1981, 

including the right to make and enforce contracts. Id. at 569. As pled, the Plaintiff’s 

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theory, therefore, is that since he was a racial minority, the Local Union had an intent to 

discriminate on the basis of his race and it concerned the oral employment contract 

between the Plaintiff and Local Union 36. 

There is absolutely no evidence to support the Plaintiff’s allegation that he entered 

into an oral employment contract with Local Union 36. (Exh. G, Affidavit of Kilpatrick, 

¶¶14-15.) Local Union 36 is a labor organization. It is an unincorporated association 

made up of approximately 160 to 170 members. Those members pay periodic dues to the 

Union. The Local Union uses those dues to fund its activities. Those activities primarily 

consist of entering into collective bargaining relationships with various employers who 

employ its members. Those CBAs require the signatory employers to pay wages at set 

rates, contribute to various funds for pension, health and welfare, Annuity, and other 

benefits, and to generally regulate their working conditions. If the employers violate any 

provision of the CBA, there is a grievance and arbitration machinery process to enforce 

the rights set forth in the Agreement. (Exh. G, Affidavit of Kilpatrick, ¶¶10-15.) 

In order to fulfill this function as a labor organization, wherein it represents its 

members for purposes of wages, hours, and conditions of employment with employers, 

the Union has two (2) employees, Robert Kilpatrick, the business manager, and Ann 

Blank, the clerical employee. Those are the only employees it has. It does not employ its 

members. (Exh. G, Affidavit of Kilpatrick, ¶14.) Membership is not employment. 

The Court in Anjelino came to the same result, except under Title VII analysis. 

The Court dismissed all claims against the Union because “. . . the Union was not the 

employer of the appellants; this is so even though some of the supervisors and workers 

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who are alleged to have discriminated against the appellants may have been members of 

the Union. While a Union may be held liable under Title VII, the record here does not 

demonstrate that the Union itself instigated or actively supported the discriminatory acts 

allegedly experienced by the appellants. Therefore, the Union is not liable. See Carbon 

Fuel Co. vs United Mine Workers, 444 U.S. 212, 217-218, 100 S.Ct. 410, 62 L.Ed. 394

(1979); Burger vs. Ironworkers Local 201, 843 F.2d 1395, 1429-30 (D.C. Cir. 1988); See 

Philadelphia Marine Trade Association vs. Local 291, International Longshoreman’s 

Association, 909 F.2d 754, 755 (3rd Cir. 1999).” Id. at 95-96. Rather, the Times was 

responsible for assigning work to the appellants and ensuring that the work was not 

contaminated with sex- and race-based discrimination and harassment. The same 

analysis follows here. 

Employment status in Pennsylvania is determined by various factors, including 

the following: (1) control of the manner of the work to be done; (2) the responsibility for 

the result; (3) the terms of the Agreement between the parties; (4) the nature of the work 

or occupation; (5) the skill required for performance; (6) whether the one employed is 

engaged in a distinct occupation or business; (7) which party supplies the tools; (8) 

whether payment is by the time or the job; (9) whether the work is the part of the regular 

business of the employer; (10) whether there is a right to terminate employment at any 

time; (11) whether the employee is paid by the alleged employer and (12) whether the 

alleged employee provides fringe benefits. Taylor vs. Costa Lines, Inc., 441 F.Supp. 783 

E.D.Pa. (1977); Hammer Mill Paper Co. vs. Rust Engineering Co., 430 Pa. 365, 243 A.2d 

389 (1968); Stevenson vs. College of Misericordia, 376 F.Supp. 1324 M.D.Pa. (1974); 

Valles vs. Albert Einstein Medical Center, 569 Pa. 542, 805 A.2d 1232 (2002). 

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Slater can meet none of these tests. For the relevant time period during which 

Slater has alleged racial harassment he worked at the Conectiv site for Steel Suppliers, 

Inc. He did not work for Local 36. Steel Suppliers controlled the manner in which he did 

the work, paid him his wages, paid for his fringe benefits, had the authority and power to 

discipline him consistent with the terms of the CBA, directed how he performed his work 

and when he performed his work, and performed full supervisory duties. Local 36 did 

none of this. 

Local 36’s function as it relates to the Conectiv job site was to refer workers to 

employers who wish to employ members of Local 36. If the Employer is willing to be a 

signatory to the CBA, then the Local refers its members to those employers. The Local 

does not control how the work is done, when it is done, by whom it is done. The Local 

does not pay wages to the members. It does not provide fringe benefits to its members. 

It is not an employer of its members. 

Slater’s allegations concerning the employment status was limited to two (2) 

facts. First, he alleged that Local 36 referred him to employment opportunities with 

employers. Second, he noted that he paid dues to Local 36. (Dep. of Slater, 02/28/06, 

pp. 21-22.) Since the Plaintiff does not articulate how this makes him an employee of 

Local 36, Defendant is left to conjecture in positing arguments. Suffice it to say that the 

simple referral of a person by the Union to another entity to perform services for that 

entity does not make the Union the employer. The entity, in this case Steel Suppliers, 

directs and controls the members, pays the members wages, pays the cost of fringe 

benefits for the members, and controls the worksite. An excellent example of this 

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relationship between the Employer and the Local Union is the evidence which developed 

concerning stewards vs. foreman. Stewards cannot be foremen. (Exh. G, Kilpatrick 

Affidavit, ¶7.) The stewards’ function among others is to handle complaints and 

grievances by members on the worksite. A foreman’s responsibility is to direct and 

control the members who work for the Employer for whom the foreman is working. The 

Local has no control over the direction of the workforce, including its members. 

Finally, even Slater acknowledges that he was not an employee of Local 36 but 

instead was employed by Steel Suppliers and the various other employers to whom he 

was referred to Local 36 for work. (Dep. of Slater, 02/28/06, p. 213.) Therefore, there is 

no oral contract of employment between Slater and Local 36. Slater’s § 1981 Count must 

fail. 

The final reason Count IV must fail is that there is no evidence of any intentional 

discrimination by Local 36. Assuming all facts alleged by Slater, those facts established 

that the Local 36 steward on the job for Steel Suppliers (David) and Frankenfield who he 

was working for another employer, were aware of the racial harassment that was 

occurring in the nature of derogatory writings in the toilets and racially offensive jokes 

being told in the trailer. It is then Slater’s theory that David, as the steward of Local 36 

and Frankenfield as President had an affirmative duty to eliminate this racial harassment. 

There is no allegation of any intentional conduct by David or Frankenfield or any agent 

of Local 36. David’s failure to take affirmative action to eliminate discrimination is not, 

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by any definition of the word, intentional conduct. Thus, Slater’s 1981 action must fail 

for that reason also.5

There is no intentional discrimination. There are no facts whatsoever to support 

any employment relationship. Count IV must fail. 

E. THERE IS NO EVIDENCE TO SUPPORT THE PLAINTIFF’S 

CLAIM THAT LOCAL 36 ENGAGED IN INTENTIONAL 

INFLICTION OF EMOTIONAL DISTRESS. 

In his final Count against all Defendants, the Plaintiff alleges that Local 36 and 

other Defendants engaged in intentional emotional distress based upon the facts pled in 

the previous paragraphs of the Complaint. Those facts would include the racial 

harassment which allegedly existed at the Conectiv site, and presumably Local 36’s 

operation of a racially discriminatory hiring hall, and the Local 36’s breach of its oral 

employment contract. There are various reasons why that Count must also fail. 

Initially, since the Count is predicated upon Local 36’s liability based on its 

alleged illegal conduct as aforementioned, the Count cannot stand on its own since there 

are no individual facts which support it. In other words, since all three (3) of the 

Plaintiffs’ theories of liability as to Local 36 fail for the reasons aforementioned, so must 

the intentional infliction of emotional distress count since it is based upon the alleged 

breach of the aforementioned statutory duties or contract. 

 

5

 Slater could have pled and argued throughout this litigation a contractual relationship between Local 36 

and Slater. Slater could have alleged that as a member of Local 36, the Bylaws of Local 36 and the 

International Constitution form a contract between him and the Local Union, since it is well established that 

Constitution and Bylaws of Unions are contracts between its members and unions. Or, Slater could have 

pled or argued that there was an alleged violation of the Labor-Management Reporting and Disclosure Act 

of 1959 (29 U.S.C. §401, et. seq.) or the Labor-Management Relations Act of 1947, also known as the 

National Labor Relations Act (29, U.S.C. §141, et. seq., as the plaintiffs did in Anjelino vs. New York 

Times Co., 200 F.3d at 99. There are of course various factual and legal defenses that Local 36 may have 

raised. However, none of those claims are before this Court. 

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Additionally, there are no facts to support the essential elements of the claim. To 

establish a claim in Pennsylvania for intentional infliction of emotional distress, a 

Plaintiff must demonstrate that the Defendants’ conduct was “so outrageous in character, 

and so extreme in degree, as to go beyond all possible bounds of decency, and to be 

regarded as atrocious, and utterly intolerable in a civilized society.” Hoy vs. Angelone,

554 Pa. 134, 720 A.2d 745 (1988). “Cases which are found as sufficient bases for a 

cause of action of intentional infliction of emotional distress have had presented only the 

most egregious conduct.” Id. “I(t) is extremely rare to find conduct in the employment 

context that will rise to the level of outrageousness necessary to provide a basis for 

recovery for the tort of intentional infliction of emotional distress.” Id. (Quoting Cox vs. 

Keystone Carbon, 861 F.2d 390, 395 (3rd Cir. 1998). Further, “I(t) has not been enough 

that the Defendant has acted with intent which is tortuous or even criminal, or that he has 

intended to inflict emotional distress, or even that his conduct has been characterized by 

“malice”, or a degree of aggravation that would entitle the Plaintiff to punitive damages 

for another tort.” Hoy, 720 A.2d at 754. (Quoting Restatement (second) of torts, § 46, 

cmt. d (1965)). 

At best, the facts establish that David as a steward was aware of racial slurs in the 

port-o-potty during the course of Slater’s employment with Steel Suppliers and did not 

take any affirmative action to eliminate that. He also overheard derogatory racial jokes in 

the work station and did nothing concerning that. It is beyond doubt that that conduct 

does not constitute an act which is so outrageous in character and so extreme in degree to 

go beyond the bounds of all decency. In fact, it does not even provide a cause of action 

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under Title VII. As such, it certainly does not result in intentional tort. The result may 

have been different if Slater could prove that the agents of Local 36, and not its members, 

either told racially derogatory jokes on a pervasive basis or directed or wrote the graffiti. 

However, there is simply no evidence of that fact because it did not occur. At best, Slater 

can identify one (1) member of the Local Union that told a racially insensitive joke in the 

break room. Other than that, his entire cause of action relies upon the concept that Local 

36 did not affirmatively move to eliminate racial discrimination in the workplace. That is 

not an intentional tort. 

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V. CONCLUSION

WHEREFORE, the Plaintiff prays that since all counts against Local 36 fail to 

state a cause of action as a matter of law, that judgment be entered in favor of Local 36 

against James Slater. 

 Respectfully submitted, 

Date: 11/09/06 By: /s/ QUINTES D. TAGLIOLI, ESQUIRE

 QUINTES D. TAGLIOLI, ESQUIRE 

 I.D. # 30158 

 512 Hamilton Street, Suite 200 

 Allentown, PA 18101-1505 

 (610) 820-9531 

 Attorney for Defendant Ironworkers 

 Local 36 

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Case 2:05-cv-03389-TMG Document 90 Filed 11/09/06 Page 51 of 64
IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

EQUAL EMPLOYMENT : NO. 2:05CV03389-GP 

OPPORTUNITY COMMISSION, : (CONSOLIDATED) 

et al., : 

 : 

 Plaintiffs : THE HON. THOMAS M. GOLDEN 

 vs. : 

 : 

CONECTIV, et al., : 

 : 

 Defendants : 

ORDER

 AND NOW, this ________ day of _____________________, 200_ upon 

consideration of the Defendant, Ironworkers Local Union 36’s Motion for Summary 

Judgment and the responses thereto, it is ORDERED and DECREED that the Defendant 

Ironworkers Local Union 36’s Motion for Summary Judgment is granted and judgment is 

entered in favor of Ironworkers Local Union 36 against the Plaintiff, James Slater. 

Plaintiff James Slater’s Complaint as to Ironworkers Local 36 is dismissed. Costs to be 

assessed against the Plaintiff, James Slater upon application of Defendant Ironworkers 

Local Union 36. 

 BY THE COURT: 

 

 J. 

Case 2:05-cv-03389-TMG Document 90 Filed 11/09/06 Page 52 of 64
IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

EQUAL EMPLOYMENT : NO. 2:05CV03389-GP 

OPPORTUNITY COMMISSION, : (CONSOLIDATED) 

et al., : 

 : 

 Plaintiff : HONORABLE THOMAS M. GOLDEN 

 vs. : 

 : CIVIL ACTION 

CONECTIV, et al., : 

 : 

 Defendant : 

IRONWORKERS LOCAL 36’S STATEMENT OF UNDISPUTED FACTS

IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT

1. Ironworkers Local 36 is an unincorporated association of approximately one 

hundred sixty (160) members. Its purpose is to represent its members in dealing with 

various area iron worker employers concerning wages, hours, and conditions of 

employment such as pension, health insurance and annuities. The geographic jurisdiction 

of Local 36 is Eastern Pennsylvania and parts of Central New Jersey. (Exh. G, Affidavit 

of Kilpatrick, ¶10.) 

2. Local 36 is affiliated with the International Association of Bridge, Structural, 

Ornamental and Reinforcing Iron Workers. It therefore is subject to the International 

Constitution and Local 36’s By-Laws. (Exh. G, Affidavit of Kilpatrick, ¶8; Exhibit H 

Constitution; and Exhibit K, By-Laws.) 

3. Local 36 has various officers including a president, vice president, business 

manager, treasurer, financial secretary, recording secretary, executive committee and 

trustees. (Exh. H, Constitution, pp. 93-102.) 

Case 2:05-cv-03389-TMG Document 90 Filed 11/09/06 Page 53 of 64
 4. The duties of the President of Local 36 are to preside over regular and special 

meetings and to appoint members to committees. He has no responsibility concerning the 

collective bargaining relationship with employers. He has no authority or power on the 

jobsite to act as a steward or business manager in terms of accepting, resolving, or 

presenting grievances or complaints (Exh. G, Kilpatrick Affidavit, ¶27; Exh. B, Dep. of 

Frankenfield, pp. 33, 46; Exh. H, International Constitution, p. 96; and Exh. F, Dep. of 

Kilpatrick, p. 46.) 

 5. At all relevant times hereto, Richard Frankenfield (Frankenfield) was President 

of Local 36. (Exh. B (Dep. of Frankenfield, p. 8, lines 20-24.) 

 6. The Business Manager is the Chief Executive Officer of Local 36. He is in 

charge of daily operations of Local 36 and his supervision over any salaried employees of 

Local 36. He has final say over all jurisdictional and internal matters. He is responsible 

for appointing stewards at job sites. (Exh. G, Affidavit of Kilpatrick; Exh. H, 

Constitution, pp. 98-99.) 

 7. At all relevant times hereto, Robert Kilpatrick (Kilpatrick) was Business 

Manager of Local 36. (Exh. G, Affidavit of Kilpatrick, ¶2.) 

 8. The Business Manager appoints stewards to each job. The steward’s function 

is to complete and file steward reports for Local 36 concerning reporting hours worked 

by members who work on job sites. He is responsible for resolving grievances that may 

arise under the terms of a Collective Bargaining Agreement (CBA) between Local 36 and 

the employer. In the event he is unable to resolve those disputes to his satisfaction, he is 

responsible for submitting or notifying the Business Manager of the grievance. (Exh. G, 

Kilpatrick Affidavit, ¶7; CBA, Article XII; Exh. B, Dep. of Frankenfield, pp. 32, 43, 49, 

51; Exh. C, Dep. of Slater, pp. 220-239; Exh. E, Dep. of David, pp. 36, 73 & 95.) 

Case 2:05-cv-03389-TMG Document 90 Filed 11/09/06 Page 54 of 64
 9. Tony David (David) was the steward for Local 36 at the Conectiv job site from 

November 2002 to late March 2003. (Exh. E, Dep. of David, pp. 29-30.) 

 10. Periodically, usually every three (3) years, Local 36 enters into collective 

bargaining negotiations with employers who engage in the business of commercial 

construction, specifically various aspects of iron work within Local 36’s geographic 

jurisdiction. Those negotiations result in a CBA which includes, among other terms and 

conditions, the wages, hours, conditions of employment, fringe benefits (such as health 

and welfare, pension, annuity benefits), overtime rules, manning requirements, health and 

safety issues, and jurisdictional issues concerning assignment of work. (Exh. G, 

Affidavit of Kilpatrick, ¶11.) 

11. The CBA contains a procedure for disputes and grievances. The grievance 

procedure is a three step (3) process. If Local 36 or any individual member wishes to 

raise an issue concerning the interpretation or application of the CBA, the first step is a 

meeting between the steward and the foreman or superintendent of the employer. If it is 

not resolved at the first step, the second step is to have a meeting between the Business 

Manager and a representative of the employer. If it is not resolved at the second step, the 

third step is to file a Demand for Arbitration with the American Arbitration Association. 

(Exh. G, Affidavit of Kilpatrick, ¶12; and Exh. I, CBA, pp. 24-25.) 

 12. Steel Suppliers Erectors, Inc. is a signatory to the CBA. The terms and 

conditions of Steel Suppliers employees, such as Slater, at the Conectiv site are set forth 

in the CBA. (Exh I, CBA.) 

13. Members of Local 36 find work in one of three (3) ways. The first is that an 

individual iron worker may pursue employment directly with an employer who is bound 

by the CBA. The second method by which a member can obtain work is by a signatory 

Case 2:05-cv-03389-TMG Document 90 Filed 11/09/06 Page 55 of 64
employer making a request for that specific worker by name. Those circumstances occur 

when the employer contacts the Business Manager and requests a particular 

member/worker to work for that employer at a particular construction site. In that event 

the Business Manager contacts the member/worker and notify him that he has been 

requested to work for that employer at a particular job site. (Exh. G, Affidavit of 

Kilpatrick, ¶16.) 

14. The third method that members obtain work through Local 36 is through the 

referral system. The referral system is made up of two (2) parts known as a referral list 

and an out of work list. The out-of-work list is a multi-page notebook that the Business 

Manager maintains on a daily basis. In that book the Business Manager records all 

employees who were referred to a particular employer, the date of the referral, and the 

date they ceased working. Through this process the Business Manager is able to keep a 

record of all members who are not presently working and the dates they last worked. The 

referral list system is a system maintained at the Local Union hall. Each morning the 

referral sheet is set out for any out of work member to sign. The member signs his name 

on the referral sheet. The Local Union hall is usually open by the Business Manager by 

6:00 a.m. at the latest Monday through Friday. In the event employers request workers, I 

then review the referral list to determine what members have signed on the referral sheet 

and are at the hall available for work. In order to be eligible for the referral system a 

member must sign this out of work book. As employers request workers the Business 

Manager refers those members listed on the out-of-work register in successive order that 

their names appear. In other words, it is a first come first serve basis. Those members 

who sign up the earliest get referred out to work first, assuming they have the skill and 

ability that the employer is requesting. The members must be present in the Local Union 

Case 2:05-cv-03389-TMG Document 90 Filed 11/09/06 Page 56 of 64
hall and must have signed in that day in order to be eligible for a referral. Employers 

may request certain workers who maintain specialized skills pursuant to the referral 

board. When this occurs, the Business Manager assigns those workers who present such 

skills. In the event that there is an insufficient number of members who have signed the 

referral sheet that morning, the Business Manager reviews out-of-work book to determine 

if there are iron workers available for work who have not signed the referral list that day. 

The Business Manager then calls the workers at their telephone number that they have 

registered with the Local Union hall. (Exh. G, Affidavit of Kilpatrick, ¶17.) 

 15. Employers contacts the Business Manager requesting workers either the night 

before the workers are needed or early the next morning. It is extremely unusual for the 

Business Manager to make any referrals out of the Local Union hall after 7:00 a.m. as the 

usual and customary starting time for all iron worker contractors is 7:00 a.m. It is 

customary for most iron workers to appear at the Local Union hall and sign the referral 

sheet between the hours of 5:30 a.m. and 7:00 a.m. Once the referral is made, the Local 

Union has no control over how the job is performed. The members appear at the 

assigned work site and are under the direction and control of the signatory employers 

through their supervisors and assigned foremen. Local 36 does not determine in any way 

how the job is performed. Its function on the job sites, through the steward and the 

Business Manager, is to handle any complaints or grievances that members may report 

which allegedly are in violation of the CBA between the signatory employers and Local 

36. (Exh. G, Affidavit of Kilpatrick, ¶18.) 

16. Iron Workers Local 36’s Apprenticeship Committee is made up of an equal 

number of employer representatives and Union members, three (3) for each. It is funded 

through contributions made by the employers as required by the CBA. The Local 36 

Case 2:05-cv-03389-TMG Document 90 Filed 11/09/06 Page 57 of 64
Joint Apprenticeship Committee is a separate and distinct entity from Local Union 36. 

Its funding is separate and it is a separate entity just as the Iron Workers District Council 

Health and Welfare Fund, Iron Workers District Council Pension Fund, Iron Workers 

Local 36 Annuity Fund, and Iron Workers Local 36 Vacation Fund are all separate 

entities formed and regulated pursuant to Section 302 of the Taft-Hartley Act (29 U.S.C. 

§ 186) and qualified under Section 503(c) of the Internal Revenue Code. The operation, 

administration, and finances of the Apprenticeship Committee are separate and part from 

Local Union 36 as required by law. (Exh. G (Affidavit of Kilpatrick, ¶19).) 

 17. New members of Local 36 are admitted to membership either as journeymen 

or as an apprentice. A journeyman iron worker is one who transfers his membership 

from another Iron Worker Local to Local 36. An individual becomes a member of Local 

Union 36 as an apprentice by applying for admission into the Apprenticeship program. 

The application for the apprenticeship program is made through the Apprenticeship 

Committee not through the Local Union. The Apprenticeship Committee interviews 

applicants for admission and accepts them based upon their skill, ability and willingness 

to work. If an applicant is accepted as an apprentice by the Apprenticeship Committee, 

then he is also submits a separate application for membership into Local Union 36 as an 

apprentice member. (Exh. G, Affidavit of Kilpatrick, ¶20.) 

 18. At all relevant times hereto, Local 36 had two (2) employees, Kilpatrick as its 

Business Manager and Ann Heckenberger (Heckenberger) as a clerical employee. Local 

36 pays their salaries and fringe benefits. Local 36 has no other employees. (Exh. G, 

Affidavit of Kilpatrick, ¶14.) 

 19. Members of Local 36 who worked for various signatory employers of the 

CBA are paid wages and provided benefits by the employer. Their job duties are 

Case 2:05-cv-03389-TMG Document 90 Filed 11/09/06 Page 58 of 64
assigned by the employer. Their job functions are assigned by the employer. They are 

under the direction and control of the employer. Local 36 does not perform any of these 

functions. (Exh. G, Affidavit of Kilpatrick, ¶15.) 

 20. James Slater (Slater) applied to the Apprenticeship Committee to be an 

apprentice iron worker in 2001. His application was accepted. He applied for the 

membership with Local 36 in 2001. His application was accepted. (Exh. G, Kilpatrick 

Affidavit, ¶24; Exh. C, Dep. of Slater).) Slater was referred to approximately ten (10) 

different employers from August 2001 through July 2002 (Exh. G, Affidavit of 

Kilpatrick, ¶24.) 

 21. Slater was referred by Local 36 in late July 2002 to work for Steel Suppliers 

Erectors, Inc. at the Conectiv site in Bethlehem, Pennsylvania. Slater worked at that site 

as an Apprentice iron worker for Steel Suppliers continuously from July 26, 2002 to 

March 28, 2003. (Exh. C, Dep. of Slater; Exh. E; Dep. of David). 

 22. Slater never requested David, as steward to file a complaint or grievance 

alleging racial discrimination or harassment at the Conectiv worksite under the terms of 

the CBA or otherwise while he was employed by Steel Suppliers at the Conectiv site. 

(Exh. G, Kilpatrick Affidavit, ¶22; Exh. E, Dep. of David, pp. 37, 57, 63, 67, 73 & 97; 

and Exh. C, Dep. of Slater, pp. 239-240.) 

 23. Slater never requested Kilpatrick, as Business Manager, to file a complaint or 

grievance under the terms and conditions of the CBA while he was employed at Steel 

Suppliers at the Conectiv site. (Exh. G, Affidavit of Kilpatrick, ¶22.) 

24. The allegations contained in paragraph 23 of Plaintiff’s Complaint are 

inaccurate since those alleged events occurred in December 2001 and January 2002. 

(Exh. C, Dep. of Slater, pp. 207-211; and Exh. A, Dep. of Mann, pp. 138-140.) 

Case 2:05-cv-03389-TMG Document 90 Filed 11/09/06 Page 59 of 64
25. The facts alleged in paragraph 23 of Plaintiff’s Complaint occurred at the 

Free Bridge over the Delaware River between Easton, Pennsylvania and Phillipsburg, 

New Jersey while Slater was employed by IEW and not while working for Steel 

Suppliers Erectors, Inc. (Exh. C, Dep. of Slater, pp. 207-211; and Exh. A. Dep. of Mann, 

pp. 138-140.) 

26. Charles Mann (Mann) never told Slater that Frankenfield engaged in any 

activities which could be construed as racially offensive as alleged in paragraph 24 of 

Slater’s Complaint. (Exh. A, Dep. of Mann, pp. 143-145.) 

27. Slater filed a Charge with the Equal Employment Opportunity Commission 

(EEOC) alleging violations of Title VII on the basis of racial discrimination on 

November 26, 2003 (Exh. M). 

28. Neither David as steward or Kilpatrick as Business Manager filed a grievance 

on behalf of Slater while Slater was alleging racial discrimination in violation of the CBA 

while Slater was employed by Steel Suppliers at the Conectiv job site. (Exh. C, Dep. of 

Slater, p. 240.) 

29. Every African-American who applied for membership in Local 36 for the 

period 2001 to 2003 was accepted for membership. (Exh. G, Kilpatrick Affidavit, ¶21.) 

30. From July 17, 2003 to October 21, 2003 Slater appeared at Local 36 and 

signed the out-of-work referral sheet at the following dates and times: 

 DATE TIME

 7/17/03 No time listed 

 7/21/03 No time listed 

 8/11/03 12:30 p.m. 

 8/15/03 9:45 a.m. 

 8/25/03 9:30 a.m. 

 9/16/03 12:00 p.m. 

Case 2:05-cv-03389-TMG Document 90 Filed 11/09/06 Page 60 of 64
 9/19/03 9:30 a.m. 

 9/23/03 7:00 a.m. 

 10/2/03 12:00 p.m. 

 10/3/03 7:30 a.m. 

 10/7/03 6:50 a.m. 

 10/21/03 10:00 a.m. 

(Exh. G, Affidavit of Kilpatrick, ¶23; and Exh. J, Iron Workers Local Union #36 Referral 

List dated 6/1/03 to 1/5/04.) 

 31. Members who appear for work appear at the Local 36 Union hall and sign the 

referral sheet after 7:00 a.m. on a work day will not be assigned to work since the work 

day starts at 7:00 a.m. (Exh. G, Affidavit of Kilpatrick, ¶23.) 

 32. Slater was assigned to work in October 2003 at a work site in Bloomsbury, 

New Jersey. (Exh. G, Kilpatrick Affidavit, ¶24.) After that assignment, Slater never 

appeared at Local 36 again. He never contacted Kilpatrick for work referrals after that 

date and he never signed the out-of-work referral list again. (Exh. G, Kilpatrick 

Affidavit, ¶24; and Exh. C, Dep. of Slater, pp. 217-218.) 

Case 2:05-cv-03389-TMG Document 90 Filed 11/09/06 Page 61 of 64
 33. Ruben Soto was a member of Iron Workers Local 399 and was never a 

member of Iron Workers Local 36. (Exh. D, Dep. of Soto, pp. 10-11.) 

 Respectfully submitted, 

 MARKOWITZ & RICHMAN 

Date: 11/9/06 By: /S/ QUINTES D. TAGLIOLI, ESQ.

 QUINTES D. TAGLIOLI, ESQUIRE 

 512 Hamilton St., Suite 200 

 Allentown, PA 18101-1505 

 610-820-9531 

 I.D. #30158 

 Attorney for Defendant 

 Iron Workers Local 36

Case 2:05-cv-03389-TMG Document 90 Filed 11/09/06 Page 62 of 64
IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

EQUAL EMPLOYMENT : NO. 2:05CV03389-GP 

OPPORTUNITY COMMISSION, : (CONSOLIDATED) 

et al., : 

 : 

 Plaintiffs : THE HON. THOMAS M. GOLDEN 

 vs. : 

 : 

CONECTIV, et al., : 

 : 

 Defendants : 

CERTIFICATE OF SERVICE 

 I, Quintes D. Taglioli, Esq., attorney for Defendant Ironworkers Local 36, do hereby 

certify that I have electronically filed the within Defendant Ironworkers Local 36 Motion for 

Summary Judgment Pursuant to F.R.C.P. 56, Defendant Ironworkers Local 36’s Brief in 

Support of its Motion for Summary Judgment, Order, and Statement of Undisputed Facts in 

Support of its Motion for Summary Judgment with notice to the parties electronically 

registered and by first class mail to the parties who are not electronically registered. 

Joanne Rathgeber, Esquire Terrence R. Cook, Esquire 

HILL WALLACK EEOC – The Boarse Bldg. 

111 East Court Street 21 South Fifth Street Suite 400 

Doylestown, PA 18901 Philadelphia, PA 19106-2515

Kimberly Kaplan, Esquire David Newmann, Esquire 

REED SMITH, LLP HOGAN & HARTSON, LLP 

2500 Liberty Place 1835 Market Street, 28th Floor 

1650 Market Street Philadelphia, PA 19103 

Philadelphia, PA 19103 

Robert Cottington, Esquire Harry T. Jones, Esquire 

Joseph P. Milcoff, Esquire Susanne Harris Carnell, Esquire 

REED SMITH, LLP HOGAN & HARTSON, LLP 

435 Sixth Avenue 555 13th St., N.W., Columbia Square 

Pittsburgh, PA 15219-1886 Washington, D.C. 20004-1109 

Paul Cottrell, Esquire Wayne Stansfield, Esquire 

Case 2:05-cv-03389-TMG Document 90 Filed 11/09/06 Page 63 of 64
One Customs House, Suite 500 Sara Begley, Esquire

P.O. Box 1031 REED SMITH, LLP 

Wilmington, DE 19801 2500 One Liberty Plaza 

 1650 Market Street 

 Philadelphia, PA 19103-7301 

Hannah Schwarzschild, Esquire 

WILLIG WILLIAMS & DAVIDSON 

1845 Walnut Street, 24th Floor 

Philadelphia, PA 19103 

 

 Respectfully Submitted, 

 MARKOWITZ & RICHMAN

Date: 11/09/06 By: /s/ Quintes D. Taglioli, Esquire 

 QUINTES D. TAGLIOLI, ESQUIRE 

 I.D. # 30158 

 512 Hamilton St., Suite 200 

 Allentown, PA 18101-1505 

 (610) 820-9531 

 Attorney for Defendant Ironworkers 

 Local 36 

Case 2:05-cv-03389-TMG Document 90 Filed 11/09/06 Page 64 of 64